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/4T 

A C 

ENATOR FROM ALABAMA 


HEARING 


LX ' ^ <• * Ssvu^ before the 

'\ 

x COMMITTEE on pri vileges and elections 

UNITED STATES SENATE 


SIXTY-THIRD CONGRESS 

FIRST SESSION 

TO CONSIDER THE CREDENTIALS OF THE 
HON. HENRY D. CLAYTON, APPOINTED BY THE GOVERNOR 
OF ALABAMA AS A SENATOR FROM THAT STATE 


AUGUST 27, 1913 


[Revised print] 


Printed for the use of the conimitt.ee 


EXCHANGE 

62 

AUG 1 1944 
Serial Rem d Division 
m Library st 


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WASHINGTON 

GOVERNMENT PRINTING OFFICE 




















COMMITTEE ON PRIVILEGES AND ELECTIONS. 

United States Senate. 


JOHN W. KERN. Indiana. Chairman. 


LUKE LEA, Tennessee. 

ATLEE POMERENE, Ohio. 

JAMES A. REED, Missouri. 
CHARLES F. JOHNSON, Maine. 
JAMES K. VARDAMAN, Mississippi. 
WILLIAM HUGHES, New Jersey. 
THOMAS J. WALSH, Montana. 
WILLIAM H. THOMPSON, Kansas. 


WILLIAM P. DILLINGHAM, Vermont. 
MOSES E. CLAPP, Minnesota. 

GEORGE SUTHERLAND, Utah. 
WILLIAM O. BRADLEY, Kentucky. 
GEORGE T. OLIVER, Pennsylvania. 
WILLIAM S. KENYON, Iowa. 


II 


Claude G. Bowers, Clerk. 


1 K\V2fl 

IHi3oU 


TABLE OF CONTENTS. 


Page. 

Argument of Senator Robinson. 1 

Argument of Robert B. Evins. 28 

Brief filed by Senator Robinson. 43 

Brief filed.by Robert B. Evins.. 52 

Briefs contained in Senate Document No. 165: 

Opinion of Emmet Neal. 60 

Opinion of R. W. Walker. 62 

Opinion of Judge J. M. Chilton... 64 

Memorandum by Daniel W. Troy. 67 

Views of T. Scott Sayre. 69 

Opinion of John C. Floyd. 71 

Opinion of Louis Fitzhenry. 74 

Briefs contained in Senate Document No. 170: 

Opinion of Hannis Taylor. 76 

Opinion.of Robert B. Evins. 82 

Letter of. C. P. McIntyre. 85 

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APPOINTMENT OF HON. HENRY D. CLAYTON AS A SENATOR 
FROM THE STATE OF ALABAMA. 


WEDNESDAY, AUGUST 27, 1913. 

United States Senate, 

Committee on Privileges and Elections, 

Washington, D. C. 

The committee met at 7.30 o’clock p. m. 

Present: Hon. John W. Kern (chairman), Hon. Luke Lea, Hon. 
Atlee Pomerene, Hon. James A. Reed, Hon. Charles F. Johnson, 
Hon. James K. Vardaman, Hon. Thomas J. Walsh, Hon. William H. 
Thompson, Hon. Moses E. Clapp, Hon. William O. Bradley, and Hon. 
William S. Kenyon. 

The Chairman. The committee will come to order. The matter 
of the credentials of Hon. Henry D. Clayton, appointed by the gov¬ 
ernor of Alabama as Senator from that State, is before the committee. 

Senator Bankhead. The Senator from Arkansas, Mr. Robinson, 
will present this case first. Afterwards Mr. Evins, representative 
of the governor, will address the committee. 

ARGUMENT OF SENATOR JOE T. ROBINSON. 

Senator Robinson. Mr. Chairman and gentlemen of the committee, 
this case as presented by us presents purely a question of law. There 
is no dispute as to the material facts necessary for its determination. 

Senator Johnston, deceased, was chosen by the Legislature of Ala¬ 
bama as a United States Senator from that State for the term begin¬ 
ning March 4, 1909, and ending March 3, 1915. 

Subsequently the seventeenth amendment to the Constitution was 
ratified and became effective, as appears from the proclamation of 
Secretary of State Bryan on May 31, 1913. Afterwards Senator 
Johnston died, and the governor of Alabama appointed Mr. Henry D. 
Clayton to serve until the meeting of the legislature of that State, 
which will be in the year 1915, in the regular course of its meetings. 
The governor of Alabama in appointing Mr. Clayton and in exer¬ 
cising the authority to make this appointment did not act hastily or 
without due deliberation, but only after procuring the very best coun¬ 
sel and advice available. He consulted with many of the most emi¬ 
nent lawyers in Alabama, including his official legal adviser, Mr. 
Evans, who is present and will participate in this discussion. 

The attorney general of Alabama, a number of other lawyers in that 
State, and Members of the House of Representatives and of the 
United States Senate were also consulted in reference to this matter. 
He reached the conclusion that under the Constitution, as it now 
exists and as it then existed, it was not only within his power but his 
duty to make this appointment. 

The Senate, being the sole judge, is called upon to determine this 
question, and it becomes necessary to construe the seventeenth 
amendment. While the question is new, it is one that may have been 

1 



2 


THE SENATOR FROM ALABAMA. 


reasonably anticipated. Its solution does not call for the application 
of unfamiliar rules of construction. Many recognized legal authori¬ 
ties analogous but not exactly in point—because it is apparent that 
there can be no case exactly in point, this being the first that has 
arisen under the new amendment—may be invoked in its determina¬ 
tion. 

It is my purpose to undertake to disclose what appears to be the 
scope and purpose of the new amendment, involving the rules appli¬ 
cable for its construction and the definition of the terms applicable 
to this discussion, especially those contained in the last clause of the 
new amendment—the seventeenth amendment. 

This amendment, while designed to change the manner of choosing 
United States Senators, is not revolutionary and is not therefore 
intended to deprive any State of its right to equal representation in 
the Senate. It recognizes, in my humble opinion, that there must 
be a transition period, affording opportunity for the States to read¬ 
just their laws and machinery so as to put in operation the amend¬ 
ment without a violent disturbance and without great expense and 
inconvenience to the public. For these reasons the last clause was 
embraced in the amendment. 

While of course this clause must be considered in connection with 
all the others, it is believed that this case is controlled by this language: 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

This language expressly exempts from the amendment two things— 
the “election” and the “term” of any Senator chosen before the 
amendment became valid. It anticipates the conditions that inev¬ 
itably followed the adoption of the amendment and sought to pre¬ 
serve until reasonable opportunity was afforded the States to read¬ 
just their laws to the new method, their full representation, which, I 
claim, was and should have been a controlling consideration in 
framing the language ratifying this amendment. 

It was impossible to anticipate, or even to approximate, the date 
when the new amendment should go into effect, because that w T as 
contingent on the action of the various State legislatures and might 
not have occurred for many years. The amendment could only 
become valid upon its ratification by the required number of the 
States, through their legislatures. It is a well-settled principle that 
a resolution of ratification, once adopted by a State legislature, is final 
and can not be rescinded; it is equally well settled that the failure or 
defeat of a resolution before one legislature does not bar or estop a 
subsequent legislature from adopting it. 

So that it is clear that when this amendment was framed it could 
not be anticipated when it would go into effect; and for that reason 
the saving clause was adopted in the form in which it is here presented. 

The exemption operates on the thing and not on the person by its 
express terms. It is the election and the term that are exempted. 
The exemption of the election of a Senator chosen before the amend¬ 
ment became valid prevents it from being retroactive. The exemp¬ 
tion of the term provides a reasonable transition period in which the 
amendment should be put into operation, and at the same time pre¬ 
serves the equal representation of the State, which I have already 
said has always been considered a controlling principle. J 


THE SENATOR FROM ALABAMA. 


3 


All agree that clause 3 relieves members chosen before the amend¬ 
ment was adopted from the necessity of again becoming candidates 
during their respective terms. Those who dispute Mr. Clayton’s right 
contend that this is the sole purpose of clause 3, and that Senator 
Johnston’s term expired, within the meaning of clause 3, when he 
died. 

Before advancing the affirmative grounds on which Mr. Clayton’s 
right to a seat is based, let us analyze this position. If this be cor¬ 
rect, why was the word “term” used? The word “election” would 
have been sufficient to preserve the right of Senators already chosen 
when the amendment was adopted, and the word “term” is un¬ 
necessary. Moreover, apt expressions, free from ambiguity, could 
have been chosen. It is not presumed that inapt and unnecessary 
language was selected in framing constitutional provisions. This 
is a well-established rule of construction, which I must apologize to 
this committee, all of whom are lawyers, for even referring to. Sim¬ 
ple expressions were available to convey the meaning if it were to 
be narrowed so as to exempt the person instead of the term from the 
operation of the amendment. For instance, the words “tenure,” 
“seat,” and perhaps “service” are illustrations. There could have 
been no doubt as to the meaning of the language if it were written: 

This amendment shall not be so construed as to affect the tenure of any Senator 
chosen before it becomes valid as part of the Constitution— 

Or— 

This amendment shall not be so construed as to affect the seat of any Senator, etc. 

And the same is true of a large number of other equally simple 
words, free from all ambiguity and doubt. But in this case, in 
framing this amendment, these simple words which have a fixed 
meaning, as, for instance, the word “seat” could have been used. 
It is used in that sense in the Constitution in the clause which says: 

The seats of the Senators of the first class shall be vacated at the expiration of the 
second year; of the second class, at the expiration of the fourth year; and of the third 
class, at the expiration of the sixth year, etc. 

But these simple expressions, which would have conveyed beyond 
any doubt the meaning which some contend this clause has, were 
available, but were discarded for language which, to say the least, 
has raised in the mind of many lawyers a very grave doubt as to their 
meaning, but which I contend when thoroughly construed gives to the 
governor of Alabama authority to make an appointment. 

It is also a well-established rule that effect must be given to all the 
words used. If, in stating these propositions of law, authority be 
needed to support them, I have such authorities at hand. The rule 
is so familiar to most lawyers that I shall not presume to present the 
matter at length, further than to refer to the subject and cite in 
mv brief some authorities. 

Effect must be given to all the words used. It is not only true that 
the legal presumption exists that the framers of this provision chose 
apt language to express its meaning, and that the language actually 
used is not apt to express the meaning imputed to it by those who 
oppose seating Mr. Clayton, but it is also a recognized canon of con¬ 
struction that effect must be given to all the language, to every sec¬ 
tion, clause, and word. I am quoting now from the authorities which 


4 


THE SENATOR FROM ALABAMA. 


I cite in my brief, and which are available. The principle is so well 
established that it seems unnecessary to argue it. . 

As already stated, if the third clause in the amendment was intended 
to apply to the incumbent, inapt terms are used and no effect is given 
to the word “term.” You must treat it as a mere repetition, because 
the word “election” was sufficient. 

Senator Kenyon. Would the word “election” cover the case of a 
man who had been appointed prior to the adoption of the amendment ? 

Senator Robinson. It would not; and I wish to make that distinc¬ 
tion later; and in my judgment the new amendment applies to the 
case of the Senator from Georgia, whom I assume the Senator from 
Iowa has in mind. 

Senator Kenyon. No; I had not any particular case in mind. 

Senator Robinson. As to the case of the Senator from Georgia, 
Mr. Bacon; and in my judgment, as I shall show further on, the new 
amendment does, in all probability, apply to his term. I will state 
the reasons for that later. 

Two primary rules of construction familiar to all lawyers are thus 
violated, and the framers of the seventeenth amendment are convicted 
of ignorance or carelessness in the performance of the grave duty of 
preparing a constitutional provision. The absurdity of this construc¬ 
tion, however, does not end here. It overrides an even more universal 
rule strictly applicable in determining the meaning of a constitutional 
provision. 

Nothing is better established than the principle in interpreting 
constitutions that words have been used in their plain, natural, and 
ordinary meaning, presumably. The courts have repeatedly an¬ 
nounced this rule, and it is so familiar that perhaps an apology is 
due for citing authorities to sustain it. With your permission, 
however, I will refer briefly to just two or three such cases, quoting 
from Mr. Justice Story and the decision in the case of Peoples. New 
York Central Railroad Co. (24 N. Y., 486): 

A constitution is an instrument of government, made and adopted by the people 
for practical purposes, connected with the common business and wants of human life. 
For this reason, preeminently, every word in it should be expounded in its plain, 
obvious, and common sense. 

Again: 

. Words must be taken in their ordinary and common acceptation, because they are 
presumed to have been so understood b\ the framers and by the people who adopted 
it (meaning the constitution). They judged of it by the meaning apparent on its 
face, according to the general use of the words employed. 

I cite in my brief a large number of cases to support that, but I 
presume there is no contention about the correctness of that principle. 

What is the plain, natural, and ordinary meaning of the words 
“affect” and “term,” used in clause 3 of the amendment? The 
language is: 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

The ordinary meaning of the word “affect,” as defined by the 
courts, is: “To act on” or “to concern.” Not to affect means, not 
to change, not to act on, not to concern. 

I have found no case which does not support this definition or 
in which the word can be regarded as not having been used in the 
sense in which it is apparently used in this clause. 


THE SENATOR FROM ALABAMA. 


5 


So, in construing the clause under consideration, we may substi¬ 
tute for the word “affect” the words which mean the same thing 
and which define it, so that the clause will read: 

This amendment shall not concern the term of any Senator chosen before it became 
valid as part of the Constitution. 

Or— 

This amendment shall not act on or change the term of any Senator chosen, etc. 

What is the plain and ordinary meaning of the word “term”? 
And here, in my judgment, we arrive at the vital issue in the case. 

Senator Bradley. vv T hat about the word “affect” there? 

Senator Robinson. The word “affect” I have just defined as 
meaning to act on, to change, or to concern, and I have in my brief 
a number of authorities, some of which at least are at hand, as sup¬ 
porting that definition. 

Some of the courts have said, in defining the word “affect,” that 
it is so simple and so plain that it is difficult of definition; and then 
they have said that it ordinarily means to change, to concern, or to 
act on. So that not to affect means not to concern, not to change, 
not to act on. 

I repeat: If you substitute the meaning of this word for the word 
itself, you have here a clause which says: 

This amendment shall not be so construed as to act on the term of a Senator chosen 
before it becomes valid as a part of the Constitution. 

The word “term” is used in connection with an office, as, for 
instance, the “term of a Senator.” “Term,” I understand, means a 
fixed and definite period. It is almost universally so construed. 

The Hon. Hannis Taylor, among the most eminent living author¬ 
ities on constitutional law, strongly supports this construction of the 
amendment. In a very clear and forceful article he reviews the pro¬ 
ceedings of the Federal convention of 1787, indirectly bearing upon 
this controversy, and shows that in all the discussions the necessity 
for fixing a definite Senatorial term was prominent in the delibera¬ 
tions of the framers of the Constitution. The final result repre¬ 
sented a compromise which was carried into the Constitution. The 
theory that representation in the Senate should be based on population 
was discarded, and all of the States given equal representation in the 
Senate without regard to their area or population. It was thus 
determined that among the fundamental principles upon which the 
Senate was created is that every State shall have two Senators who 
shall serve for a term of six years. The seventeenth amendment 
retains both of these principles. There is not an express or implied 
attempt to alter either of them, or to deny to any State its right to 
equal representation. The policy of these principles is important. 
It prevents the concentration of political power in the great centers 
of population, and preserves to the smaller States their dignity and 
power as factors in the Federal Government. 

The seventeenth amendment changes the method of electing 
Senators, but Senators are still, in an important sense, representa¬ 
tives of their respective States. The principle of maintaining the 
equal representation of the States grows rather then diminishes in 
importance with the ever-increasing complexity of national political 
problems. The reason for the seventeenth amendment and the 


6 


THE SENATOR FROM ALABAMA. 


causes for its ratification are found in the fact that the system of 
electing by legislatures has been discredited by deadlocks and the 
frequent practice of frauds and corruption. The senatorial term of 
six years will be continued under the election of Senators by popular 
vote, as in the case of Members of the House of Representatives, 
their term being two years. 

The “term” is rarely synonymous with the incumbent. The term 
of a Senator is a definite period of six years. While the word “term” 
is not used in the provision of the Constitution creating the Senate, 
it is established by the words: 

The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof for six years. 

There can be no doubt that the term of a Senator means the fixed 
period for which he is chosen; that is, six years. There would be no 
such thing as an unexpired term if it were not for the classification 
into three classes of Senators: 

The seats of the Senators of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one-third may be chosen every two 
years. 

It is the introduction of this clause which modifies the first clause 
creating the Senate; but otherwise, were it not for this last clause 
quoted, every Senator would serve six years without regard to the 
time of his selection, and there would be no such thing as an unex¬ 
pired term. Even in the case of the death or the resignation of a 
Senator, his successor would serve for six years—the full senatorial 
term—were it not for the classification clause which I have referred to. 

So, it must be apparent to everyone that there is in the Constitu¬ 
tion a definite entity to be known as the senatorial term or the 
senatorial period. This is as much a part of the Constitution as the 
Senator himself, and it can not be Said to be a strained construction 
when we give to the word “term” the meaning that is usually given 
to it by the courts when construing similar provisions. 

The plain and ordinary meaning of the word “term” in this con¬ 
nection is the definite period prescribed by the Constitution, and 
does not expire with the death or resignation of a Senator. 

Senator Walsh. I have not been able to follow fully the course 
of reasoning by which you arrive at the conclusion that were it not 
for the classification provided, a Senator elected upon the death of 
another, before the expiration of his term, would serve for the full 
period of six years. 

Senator Robinson. The language of the Constitution or, of the 
clause referred to, is that— 

The Senate shall be composed of two Senators from each State, chosen by the legis¬ 
lature thereof, for six years. 

So, if that were the sole provision in the Constitution applicable, 
every Senator would be chosen for six years; and if the Senator died 
or resigned his successor would serve the six-year period. But the 
clause that provides for classification requires that one-third of the 
Senators be elected every two years, and that modifies this first 
clause to that extent. 

Senator Walsh. But suppose we dismiss that classification, and 
we have a provision there that they are elected for six years, and then 


THE SENATOR FROM ALABAMA. 7 

we have another provision that in case of vacancy the executive shall 
make a temporary appointment? 

Senator Robinson. The vacancy would be filled by the session of 
the legislature. 

Senator Walsh. Are we to understand by your statement that 
when the legislature got together the next time they would elect for 
six years and not for the unexpired term ? 

Senator Robinson. Yes, sir. There would be no such thing as an 
unexpired term but for the classification clause in the Constitution. 
It exists, and the only purpose in referring to it is that there is 
such a thing as a senatorial term, and it is ordinarily six years. 

Senator Walsh. But suppose the Constitution provided that in 
the case of governors the governor should hold his office for four 
years, and in case of his death or resignation a special election should 
be held to fill the vacancy ? 

Senator Robinson. It would depend purely upon the language 
of the Constitution. If the language of the Constitution said that 
every governor when chosen should serve four years, his successor 
would serve four years, unless the Constitution provided for and 
recognized an unexpired term. What I am saying is this, that the 
framers of the Constitution recognized the importance of fixing a 
definite period as a senatorial term, and that in every case it would be 
six years but for the fact that a subsequent clause of the Constitution 
creates impliedly an unexpired term. 

Senator Walsh. Read that clause, please. 

Senator Robinson (reading): 

The seats of the Senators of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one-third may be chosen every second 
year; and if vacancies happen by resignation, or otherwise, during the recess of the 
legislature of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such vacancies. 

I want to go on with the plain meaning of the word “term.” 
The sole purpose of this feature of my discussion is to show that 
there is in law and in fact the definite thing which is known as the 
term of a Senator; and the term of a Senator does not mean, as I 
shall attempt to show later, the period of his natural life or period 
for which he may choose to serve without resignation, but it means 
the entire time for which he is chosen, and it ordinarily means for 
six years. 

Senator Kenyon. Is that the term of a Senator or the term of 
office for which he is elected ? 

Senator Robinson. I will show that when I reach the authorities. 
I am not impatient at all about your question, but I have anticipated 
all these questions and have the authorities at hand. I will proceed 
to show, now, that such expressions as “his term,” which certainly 
means the same thing as “of a Senator,” are synonymous. The 
phrase “of a Senator” means “his term.” You could not put it any 
stronger than that, could you ? 

I will show that the courts have construed that to mean the fixed 

E eriod for which he was chosen, without regard to the term that 
e actually served and that it has in fact a definite meaning. “His 
term” means the period for which he is chosen. 

Senator Vardaman. The period for which he may serve ? 


THE SENATOR FROM ALABAMA. 


Senator Robinson. Yes; the period for which he may serve. Did 
I not say that? The clearest case on that point that I have found 
is in the One hundred and forty-eighth Kentucky, where this exact 
question is discussed in language that is clearer than I can use, and 
I am going to read just a few sentences from it. I will not presume 
upon the patience of the committee to read much from the books, 
but the language is better than I can use. 

In the Kentucky constitution there was a provision like this: 

The compensation of any city, county, town, or municipal officer shall not be 
changed after his election or appointment, or during his term of office; nor shall the 
term of any such officer be extended beyond the period for which he may have been 
■elected or appointed. 

Now, note the language: 

The compensation of any city, county, town, or municipal officer shall not be 
changed after his election or appointment, or during his term of office; nor shall the 
term of any such officer be extended beyond the period for which he may have been 
elected or appointed. 

The court, in passing upon and construing that clause, uses this 
language: 

It is the contention of the Commonwealth that the prohibition in section 1 against 
changing the compensation of any officer “during his term of office” means that the 
■compensation shall not be changed during the period fixed by the statute or constitu¬ 
tion as the duration of the full term of the office, regardless of how many incumbents of 
office there may be during the full term caused by the filling of vacancies in the office. 
Or as applied to the case at bar that as the compensation of Morgan could not be changed 
during the term for which he was elected, the compensation that he would have 
received is the only compensation that could be paid to any person appointed or 
elected to fill a vacancy occurring in the office of Morgan during the term for which he 
was elected. 

Now, proceeding to the very point at issue, the court said: 

Ellison was appointed to fill out a part of Morgan’s unexpired term. He had no 
term of office apart from the term of Morgan. He was merely occupying the place that 
Morgan under his election wo' Id have filled except for his resignation. A term of 
office when the period of the term is fixed by constitution or stat te means the period 
•designated by the constitution or statute. 

Senator Walsh. What would you say was Ellison’s term? 

Senator Robinson. He had no term apart from that of Morgan. 
That is why I am reading the language of the court. 

Senator Walsh. It would not be proper to speak of the term of 
Ellison ? 

Senator Robinson. No; it is Morgan’s term; and you will see the 
force of that in this connection. I contend that it is Senator John¬ 
ston’s term, within the meaning of the Constitution of the United 
States. It is not the term of Mr. Clayton. There may be 25 Senators 
who serve in that term, but it remains, in contemplation of law, the 
term of the Senator first chosen. 

Senator Kenyon. Does the constitution of Kentucky provide for 
the term of office for which he was elected ? 

Senator Robinson. No; I quoted the language—“or during his 
term of office.” “During his term of office” is certainly equivalent 
to “term of an officer.” It means the same thing. The term of a 
Senator means his term as a Senator. 

Proceeding, now, with the reading of what the court said in the 
Ellison case, after saying that Ellison had no term, he was merely 
serving the unexpired term of Morgan, it states: 

There should be a certainty and a fixedness about the words “his term of office.” 
There were not intended to depend upon the mere accident of appointment or elec- 


THE SENATOR FROM ALABAMA. 


£ 

tion to fill a vacancy for a month or a year. When a person is appointed or elected to 
fill a vacancy in a term he merely fills out the term of his predecessor. He does not 
enter on a new term of office as does a person who is elected or appointed and takes 
the office at the beginning of the term as fixed by law. Within the meaning of sec¬ 
tion 161 of the constitution, Ellison occupied precisely the same position that Morgan 
would if he had not resigned. 

The court cites from a case in the Eighty-first California Reports 
which supports that contention exactly. 

Senator Lea. What is the style of the Kentucky case? 

Senator Robinson. Bosworth, Auditor, v. Ellison. 

Senator Lea. Who wrote the opinion? 

Senator Robinson. The opinion is by Judge Carroll. 

Senator Bradley. He is a very able judge. 

Senator Robinson. Going now to the California case, here is the 
language of the constitution of California involved in this case. It 
is almost exactly in point. 

Senator Lea. Let me have your reference, please. 

Senator Robinson. It is the case of Larew v. Newman (81 Cal. r 
588). 

Senator Vardaman. You have all those authorities cited in your 
brief, have you not ? 

Senator Robinson. They will be all available, but I am not going 
to read very much of them. 

Senator Vardaman. That is all right. I simply wanted to say 
that if you had them it was not necessary to take up any more time* 

. Senator Robinson. Section 9 of Article XI of the State constitu¬ 
tion provides that: 

The compensation of any county * * * officer shall not be increased after hi& 
election or during his term of office. 

And in considering his term of office in that case, the court, as tho 
courts have in almost numberless other cases, only a few of which. 
I have brought before you, held, as in the Kentucky case, that his 
term of office had no relation whatever to the incumbent; that it 
was a fixed and definite period, a separate entity, apart from the- 
incumbent. 

The language of the syllabus is: 

Under section 9 of Article XI of the State constitution prohibiting the increase of 
compensation of any county officer during his term of office, taken in connection 
with section 1004 of the Political Code, concerning appointments to fill vacancies in 
office, an increase of salary given under the general county government act, which 
enacted that its provisions for salaries “shall not affect the present incumbents” 
does not accrue in favor of one appointed to fill a vacancy in an unexpired term of 
such incumbent, and does not commence to run until the expiration of the term for 
which s”ch incumbent had been elected. This result can not be evaded either by 
the original incumbent resigning and procuring himself to be reappointed or by his 
resigning and allowing some other person to be appointed. 

The opinion is brief and very clear, and I will read no more from 
that. 

Another case I desire to call your attention to is in the One hun¬ 
dred and twenty-ninth California Report, at page 526, the style of the 
case being Storke v. Goux. That supp3rts the doctrine absolutely. 

Senator Lea. Is that on the same provision of the constitution? 

Senator Robinson. Yes, sir; the same provision—“His term of 
office” construed in that case. 

Referring to the Thirty-eighth Pacific, page 134, the case of State 
v. Twichel, I find this language- 



10 


THE SENATOR FROM ALABAMA. 


The Chairman. What court, please ? 

Senator Robinson. This is the Supreme Court of Washington. 

The Chairman. I thought you said it was a California case? 

Senator Robinson. I did not read from the California case; I 
simply stated it supported the other California case. This passes 
on a provision very similar to that which I have already quoted. 
This language is used: 

“Term,” as applied to time, signifies a fixed period, a determined or prescribed dura¬ 
tion. A term of office is a fixed period prescribed for holding office. The word 
“term, ” when used with reference to the tenure of office, ordinarily refers to a fixed 
and definite time. 

That opinion cites a well-known textbook “Meacham on Public 
Officers.” 

Senator Pomerene. The language is there “ tenure” ? 

Senator Robinson. Yes, sir. 

Senator Pomerene. Does it point out the exceptions which the 
court had in mind? 

Senator Robinson. No; I have found no exception. 

Senator Lea. Will you read the exact wording of the constitution 
of Washington, which was being construed ? 

Senator Robinson. Section 5, Article XI, of the constitution is as 
follows: 

The legislature, by general and uniform laws, shall provide for the election in the 
several counties of boards of county commissioners, sheriffs, county clerks, treasurers, 
prosecuting attorneys, and other county, township, or precinct and district officers, 
prescribe their duties and fix their terms of office. 

It is upon the construction of that provision of the constitution 
that the court proceeds with this language. I have read a part of it. 

In fact, the expression “term of office” so clearly defines itself, the words used are 
so well understood, and their meaning so generally accepted, that it is useless to fur¬ 
ther attempt to define it. 

This court went so far as to say that the words “term of office” 
are so well fixed that it is useless to attempt to define them. 

It is argued by appellant that the legislature might abuse its discretion, and fix the 
term of office to extend over the lifetime of the person holding the office. 

The court goes on and answers that objection. 

I have cited in my brief something like 30 cases. I have taken 
the trouble to read them all. I am not going to impose on the com¬ 
mittee by doing that now. 

Senator Thompson. Have you the Kansas cases on that ? 

Senator Robinson. I have the Kansas cases. 

Senator Thompson. There are two or three Kansas cases along the 
same line. 

Senator Robinson. There are two or three Kansas cases in point 
which the Senator from Kansas kindly called my attention to yester¬ 
day, and I have cited them in my brief. 

Senator Walsh. Before you pass to that, will you have the kindness 
to state to us what is the converse of this proposition, the proposition 
which you suppose is offered in antagonism to the one which you are 
advancing ? 

Senator Robinson. Would you object to my proceeding regu¬ 
larly, because I will reach it in 5 or 10 minutes, and I would rather 
proceed in that way if you do not object? 


THE SENATOR FROM ALABAMA. 


11 


Term of office is the period for which an officer is chosen to serve, 
and is independent of the length of time for which he may in fact 
serve. It is therefore clear from the weight of authority that the 
term of a Senator does not end with his death or resignation; it 
continues uninterruptedly until the end of the six-year period. There 
may be any number of Senators in a single term. For instance, let 
me state that Senator Davis of Arkansas died January 2, 1913, a few 
days prior to the meeting of the legislature. Mr. J. N. Heiskell was 
appointed by the then governor of Arkansas to serve until the meet¬ 
ing of the legislature; and that body when it met chose Mr. W. M. 
Kavanaugh to fill out Senator Davis’s unexpired term. 

So, within the very short period of Senator Davis’s term, there were 
three Senators; and in theory there may be any number of Senators 
during any single term. But that term remains, for any purpose of 
law and of fact, the term for that Senator. 

Senator Kenyon. No Senator may get rid of his term? 

Senator Robinson. It is still his term and remains his term. It 
expires only by limitation. 

Senator Pomerene. Would it not be even more likely that lan¬ 
guage something like this would have been used, “The term for which 
any Senator is chosen” ? 

Senator Robinson. I do not understand the significance of your 
question. 

Senator Pomerene. I am referring to the construction that you are 
placing upon the language here. 

Senator Robinson. No; I do not think so. I say this, that the 
language that has been used has in law a fixed and definite meaning, 
and I have stated to you the cases which are as analogous as any case 
can be, there being no exact precedent. The language used has a 
fixed meaning, and that means the six-year period or the period for 
which the Senator has been chosen. 

Senator Thompson. Have you any cases where the single word 
“ term” in connection with a matter of this kind has been construed— 
these cases deciding his term of office ? 

Senator Robinson. Yes. “Term of office” means the same thing. 
The term is the period for which an officer is elected. 

Senator Lea. But all the cases you have cited contain the words 
“his term of office” or “their term of office.” There is no case that 
uses the single word “term” that is used in the seventeenth amend¬ 
ment. Have you any cases among those you cited in your brief 
that refer to the construction of the single word “term” ? I under¬ 
stand your contention is that “term of office” and “term” are 
synonymous ? 

Senator Robinson. Not exactly. The term of a Senator is equiva¬ 
lent to his term of office. It simply modifies term and means his 
term. 

The Chairman. I do not want to disturb you, but this is running 
through my mind: Referring to your construction of this clause, let 
us take the case of Senator Jackson of Maryland. Senator Rayner 
died before this amendment took effect. Senator Jackson was 
appointed by the governor of Maryland and was in office at the time 
the amendment went in force. 

Senator Robinson. Yes. 


12 


THE SENATOR FROM ALABAMA. 


The Chairman. Of course, your theory is that Senator Jackson has 
no term. Senator Jackson is serving out the unexpired term of 
Senator Rayner. 

Senator Robinson. He is simply temporarily appointed by the 
governor until he has been chosen- 

The Chairman. I have not finished my question at all. 

Senator Robinson. All right, sir. 

The Chairman. Senator Jackson was in the Senate at the time this 
amendment went into effect. How does this clause that you speak 
of here, referring to Senator Jackson, cover that case, if he has no 
term ? 

Senator Robinson. I will explain to you in just a moment. The 
term of a Senator chosen is distinct from the Senator appointed, and 
I am going to discuss that before I conclude, if I may proceed in my 
regular course, and give you my view about that. 

The Chairman. The point in my mind is this: Senator Jackson 
has no term. This language which says that the amendment shall 
not be construed as affecting the election or term of any Senator can 
not refer to Senators of the class of Senator Jackson at all, because 
they have no term. 

Senator Robinson. No, but it refers to the term. 

The Chairman. But this is the term of another Senator. 

Senator Robinson. But Senator Rayner was chosen before the 
amendment became effective. His term has not yet expired. There¬ 
fore the term in which Senator Jackson is serving by temporary 
appointment is not affected by the amendment. 

Senator Vardaman. You have discussed all those things in your 
brief, have you not ? 

Senator Robinson. No; I have not seen fit to go into the details 
and discuss any other case than the one at bar. There may be reasons 
for that, and one is I have not studied that case, and another is that 
my contention may be right in this case and wrong in that case. 

The Chairman. The Senator misunderstood me if he thought I 
was asking for his opinion as to the Maryland case. I was using 
that as an illustration to get your opinion of the meaning of the 
words “shall not be so construed as to affect the term of any Senator 
chosen before it becomes valid as part of the Constitution”—as to 
how that would affect a case like that of Senator Jackson, who was 
in office and holding a seat in the Senate at the time. 

Senator Robinson. I think his case would be governed by the 
old provision, because the term of office continues that of the first 
Senator chosen, Senator Rayner’s term, and therefore anyone ap¬ 
pointed or chosen during that term must be appointed or chosen 
under the old provision of the Constitution. 

Senator Clapp. Do you think “appointed” and “chosen” are 
synonymous ? 

Senator Robinson. No, sir; I do not, and I have anticipated all 
these questions and will refer to them in just a moment. 

Senator Clapp. Senator Jackson has not been chosen at all? 

Senator Robinson. Senator Jackson has not been chosen at all; 
that is the point. 

The Chairman. He is serving in the Senate. 

Senator Robinson. But there is nothing said in the Constitution 
about a Senator serving. My contention is this, that you must give 



THE SENATOR FROM ALABAMA. 


13 


every word in it some meaning. You can not discard a single word 
in the seventeenth amendment; and in addition to that you must 
not only give it some meaning, but give it its plain, natural, and 
ordinary meaning, if this can be done without violence. 

Senator Vardaman. As a matter of fact that is the universal con¬ 
struction of the Constitution. 

Senator Robinson. In view of these authorities there can be no 
question as to the ordinary, natural meaning of the word “term” as 
used in this clause. No well considered case establishes the contrary 
doctrine. 

If the language be given its ordinary meaning, the conclusion is 
inevitable that Mr. Clayton is entitled to his seat, because the term 
of Senator Johnston is not concerned or affected by the new amend¬ 
ment and is governed solely by the old provision. 

It has been suggested that the word “term” is modified by the 
word “chosen” or by the words “of a Senator chosen.” These words 
make plain what term is exempted. It is not every term that is 
exempted from the operation of the amendment and governed by 
the old amendment, but only those terms in which the Senators 
chosen before the amendment became valid. All others are governed 
by the new amendment. 

While the words “choose” and “appoint” are sometimes synony¬ 
mous, the word “choose” is a broader term, and frequently means 
“to elect.” The Constitution distinguishes between these terms and 
uses the words “temporary appointment” in a different sense from 
the word “choose.” Under Article I, section 3, of the Constitution 
Senators are chosen by the legislatures— 

and if vacancies happen by resignation or otherwise during the recess of the legisla¬ 
ture of any State the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancy. 

Senator Kenyon. Under your theory the Legislature of Maryland 
could elect Senator Jackson for the remainder of Senator Rayner’s 
term? 

Senator Robinson. I am inclined to think so. 

Senator Reed. Although the express provision of the seventeenth 
amendment is that hereafter all Senators shall be elected by the 
vote of the people ? 

Senator Robinson. Oh, no. 

Senator Reed. Then, it comes to the question, of course, of the 
unexpired term? 

Senator Robinson. I do not think the Senator is quoting the 
exact language. 

Senator Reed. It says: 

The Senate of the United States shall be composed of two Senators from each State 
chosen by the legislatures thereof for six years. 

Senator Robinson. My contention is, as I am going to show, that 
I think the language that is used here can not fairly be given any 
other meaning than to exempt not alone the one who happens to 
be an incumbent of the office, but the period of his official term. 

In Conger v. Gilmer (32 California, 75, 78) the court said the words “appointment” 
and “election” represent different tenures. The people elect; the governor or other 
functionary appoints * * * ; where the officer is chosen by the people he takes 

by virtue of his election. Where the office from any cause becomes vacant before the 

7674—13-2 


14 


THE SENATOR FROM ALABAMA. 


expiration of the term, and it is filled by the choice of the governor or some other 
public functionary, the officer takes by virtue of his appointment. 

Again: “In the popular sense an election is a choice which several persons col¬ 
lectively make of a person to fill an office or position, while an ‘appointment’ is a 
choice for such office or position by some single officer or person. Where a police 
judge was selected by the several members of the city council it is not inappropriate 
to say that he was elected.” (State v. Williams, 60 Kans., 837.) 

In People v. McKinney (52 N. Y., 374) this distinction is made quite clear, as also 
in People v. Bull (46 N. Y., 57). In the latter case it was held that an act of the 
legislature extending the term of the incumbent of the office of justice of a district 
court in the city of New York which he held by election at the time the act was passed 
was in conflict with a section in the constitution of that State providing that all city, 
town, and village officers, whose election or appointment is not provided for by this 
constitution, shall be elected by the electors of such cities, etc., or appointed by such 
authorities thereof as the legislature shall designate for that purpose. 

It was held to be in substance an appointment by the legislature * * * and 
that it could not be done under the power to fix the duration of the term. 

When is a person chosen to an office ? When is a Senator chosen ? 
This exact question has been answered in State v. Hunt (54 N. H., 
431,432): 

A person is chosen to an office within the statute providing for the filling of vacan- • 
cies, although he dies after the votes are cast though before they are counted. 

In the case of the Senator from Georgia, Mr. Bacon, while he was 
temporarily appointed by the governor of Georgia before the new 
amendment became valid, his term is governed by the new amend¬ 
ment because he was not chosen—that is, elected—until after the 
amendment had become effective. 

Senator Walsh. If you will excuse me, Senator, I did not get your 
idea in connection with Senator Bacon. 

Senator Bobinson. My idea is this: The provision of the amend¬ 
ment is: 

This amendment shall not affect the term of the Senator chosen before it becomes 
valid as a part of the Constitution. 

“Chosen” means elected by the legislature; it does not mean 
appointed in this connection, and therefore Senator Bacon was not 
chosen until after the amendment became valid and therefore his 
election was valid. Of course, the election in any other case than 
this- 

Senator Walsh. How was Senator Bacon appointed ? 

Senator Bobinson. He was first appointed by the governor of 
Georgia until the meeting of the legislature, and then he was_ 

Senator Walsh. And his term had expired ? 

Senator Bobinson. And then the legislature called an election and 
he was elected under the new constitution. 

Senator Walsh. His term had expired ? 

Senator Bobinson. Yes. 

Senator Clarke. His term expired in March and the legislature did 
not meet until June. 

Senator Robinson. He was not chosen, then, until the legislature 
inet, and the legislature did not meet until after the amendment 
became effective. 

Senator Walsh. Under the act of Congress it was the duty of the 
legislature to elect a Senator at the session next preceding the exni- 
ration of his term. Didn't they do that ? r 

Senator Bobinson. They did not. My information is he was tem¬ 
porarily appointed by the governor. 



THE SENATOR FROM ALABAMA. 


15 


Senator Walsh. Then why does not the case fall within the case of 
Quay, Manly, etc., which holds that the governor has no power to 
appoint at all ? 

Senator Robinson. The legislature had not met. 

Senator Walsh. They had failed to elect ? 

Senator Robinson. Yes; that may be true, as they had that period 
of his services before he was chosen; that is, elected. His seat was 
therefore invalid. I do not care, however, to go into that. 

Senator Walsh. I am not able to follow that. 


Senator Smith of Georgia. We have recognized in Georgia for 
several years that the temporary appointment by the governor of a 
Senator at the first of a term has been of doubtful validity. 

Our legislature is elected in October and does not meet until June. 
The new term of the Senator begins in March. Until a few years ago 
the legislature elected in October met in November. Since it began 
meeting in June and the governor began appointments in March we 
have felt that possibly for the months before the legislature met our 
Senators appointed by the governor sat by courtesy. When the 
change took place, Clay, who was named by the governor, had been 
in the Senate for some time and he was permitted to retain his seat 
without any formal action by the Senate upon the right of the gover¬ 
nor to appoint. 

Senator Robinson. If I may have the attention of Senator Walsh, 
although that is not germane to this question- 

Senator Walsh. You used it for the purpose of illustration. 

Senator Robinson. My position is this: There is a distinction 
between the words “chosen” and “temporarily appointed,” and 
the new amendment does not apply to the case of a Senator who 
was chosen before. It does apply to the case of a Senator chosen 
afterwards, by clear implication. Senator Bacon was chosen after 
the amendment became valid, and therefore was elected by the 
people. That is as clear as I can make the distinction. 

It the Senator has in mind the fact that he was not elected until 
after this became valid, I will say what I have been trying to say, and 
that is that Senator Bacon was not chosen until after this became 
valid, and therefore the amendment does apply to his case, and he 
was formally elected by the people. That all hinges upon the dis¬ 
tinction between the words “chosen” and “appointed,” and that dis¬ 
tinction, I say, is carried in the Constitution. The constitutonal pro¬ 
vision which refers to the selection tf a Senator says, “temporarily 
appointed by the governor.” It never says “temporarily appointed 
by the legislature.” It uses the language “chosen by the legis¬ 
lature,” and therefore the word “chosen” has in the Constitution a 
fixed meaning, and that is elected rather than appointed. To choose 
a Senator, I say, does not mean to appoint. He was not chosen until 
after that became a part cf the Constitution. Have I made myself 


clear ? 

Senator Walsh. No. 

Senator Robinson. Where is the Senator in doubt? 

Senator Walsh. The appropriateness of the illustration from 
Georgia is a perfect blank to me. 

Senator Robinson. Senator Bacon's term did not begin when he 
was appointed. His appointment by the governor of Georgia was in¬ 
valid. He was not chosen until after this amendment became a part 



16 


THE SENATOR FROM ALABAMA. 


of the Constitution, and therefore he was elected. The new amend¬ 
ment governs all cases where the Senators are chosen after it becomes 
valid. ... • 

Senator Lea. You can make that distinction clear, Senator, by 
telling when he was appointed. 

Senator Robinson. I do not remember the exact date. 

Senator Lea. When did the governor of Georgia appoint Senator 
Bacon ? 

Senator Smith of Georgia. The 1st of March. 

Senator Robinson. But when was he elected by the people ? 

Senator Smith of Georgia. In July. 

Senator Robinson. The governor had no power, it is conceded, to 
appoint him, but that is immaterial. The appointment by the 
governor was not a choosing within the meaning of the Constitution. 
The provision of the amendment is, “It shall not be so construed as 
to affect the term of any Senator chosen before it becomes valid as 
a of the Constitution.’’ 



Len is a Senator chosen? In the case of Senator Bacon it w^as 


when he was elected, not when he was appointed. He was not 
elected until after the amendment became valid, and therefore 
properly elected. 

Senator Johnson. If you will pardon the interruption, Senator, 
I lost some part of your argument. You were discussing the word 
“term.” Let me ask this question: Suppose at the time the amend¬ 
ment was adopted and became a part of the Constitution the Legisla¬ 
ture of Alabama was in session, and then under the provisions of that 
amendment had provided that a vacancy occurring in the term of 
any Senator should be filled by an election by the people, and then 
Senator Johnston’s death followed, could the governor of Alabama, 
under your interpretation of “term,” notwithstanding the legislature 
had made this provision for an election, fill the vacancy- 

Senator Robinson. My interpretation of this language is that it 
does not apply to the full six-year period for which Senator Johnston 
was elected, which began in March, 1909, and ends in March, 1915, 
and that during that period the old method prevails and the new 
can not be enforced, because Senator Johnston was chosen before the 
new amendment became a part of the Constitution. 

Senator Johnson. Notwithstanding the legislature may have 
acted ? 

Senator Robinson. Yes. That, of course, is a purely hypothetical 
case. 

Senator Reed. That brings us to this, then, Senator, if I under¬ 
stand you: That if any Senator of the United States dies to-day, or 
resigns, or is expelled, the balance of the six years for which he was 
elected can not be filled by an election of the people under any cir¬ 
cumstances or conditions whatsoever, but can only be filled by a 
temporary appointment by the governor; and when the State legis¬ 
lature thereafter meets, the legislature will elect, and the operation of 
this amendment is practically postponed until the terms of Senators 
expire ? 

Senator Robinson. Yes; all Senators chosen before; and I shall 
proceed to discuss the policy of that. 

Senator Kenyon. If the legislature in Alabama had been in ses¬ 
sion at. the time of Senator Johnston’s death, under your theory the 
•legislature would have elected a successor ? 



THE SENATOR FROM ALABAMA. 


17 


Senator Robinson. Yes; surely. 

The Chairman. Let me understand you, Senator. Take the case 
of Senator Broussard. He was elected in 1912, and his term com¬ 
mences March 4, 1914. 

Senator Walsh. No; 1915. 

The Chairman. He takes his seat March 4, 1914. 

Senator Walsh. No; 1915. 

Senator Robinson. Anyway, when he takes his seat hereafter, he 
takes it after the amendment becomes valid. 

The Chairman. His term expires in March, 1920, or 1921 ? 

Senator Robinson. Yes. 

The Chairman. He was elected in 1912 ? 

Senator Robinson. Yes. 

The Chairman. And I understand you to say that if he might 
die, say, January 1, 1914, and another man were elected, and that 
man resigned—speaking now of things that happened between 1920 
and 1921—there might be three or four Senators come up here from 
Louisiana, elected by the legislature or appointed by the governor. 
Then the amendment would not operate at all until 1920 or 1921 ? 

Senator Robinson. That is true. Gf course, the Senator has 
stated a hypothetical and improbable case, and my theory, if I can 
make it plain, is that all Senators chosen—which means, elected by 
the legislature—that all Senators elected by the legislature before 
this amendment became a part of the Constitution not only are 
exempt from running for office again during their full senatorial 
period, but their period itself is exempted by the express language 
of clause 3 of this amendment from the operation of the amendment. 

Now, I want to discuss that feature of it. 

Senator Pomerene. Has your attention been called to a report 
on a similar resolution made by Mr. Tucker? 

Senator Robinson. Yes; I have that here. 

Senator Pomerene. In 1892 ? 

Senator Robinson. Yes. I am glad the Senator mentioned that. 

Senator Bankhead. He was elected to a term that begins after 
the adoption of this amendment? 

Senator Robinson. Yes; but he was chosen so that, according to 
the plain language of it- 

Senator Bankhead. My idea was, he was chosen to a term that 
begins after the adoption of the amendment. 

Senator Walsh. The amendment expressly provides that it shall 
not affect his election. 

Senator Robinson. “Election” or “term”? Here is the point. 
The whole question hinges upon the question of fact whether he was 
legally chosen. If he was legally chosen, it can not affect either him 
or his term. That is as clear as I can make it. 

Now, as to this report you have referred to, that has been quoted 
around the cloakrooms as being an authority against this construc¬ 
tion. The author of a very similar resolution reported in the House 
of Representatives in 1902 expresses his opinion as to the meaning 
of the resolution. The only thing that is contained in this report 
bearing on that subject, or bearing on this case, is the following 
language: 

That the title of no Senator may be affected who at the time of the adoption holds 
his seat at the hands of the legislature of his State, as now provided by the Constitution, 
“the last provision is inserted out of abundant caution.” 



18 


THE SENATOR EEOM ALABAMA. 


That is all the language that is used in that report that reflects upon 
the meaning of clause 3, and I submit it is no authority against the con¬ 
struction which is asserted here. In the first place, it was merely the 
individual opinion of a Member of Congress, and that, of course, is 
entitled to some credence. In the next place, it does not preclude 
this construction because it expresses what, in his opinion, was the 
governing purpose of clause 3. But he does not say, either expressly 
or impliedly, that that was the only purpose. He gave that as a 
reason and a justification for the clause, but by no fair argument that 
I am familiar with can that be regarded as presenting the construc¬ 
tion that I am placing on it. 

Senator Pomerene. This matter was up for discussion repeatedly 
in both Houses of Congress time after time during the history of the 
different resolutions that were pending looking to an amendment to 
the Constitution. 

Senator Robinson. Yes. 

Senator Pomerene. Has the Senator found that in any of these 
discussions it was attempted to place any construction on this 
language ? 

Senator Robinson. Very little. The discussion in the Senate 
hinged about where the power to control the election of Senators 
should be vested, whether in the States or whether the Federal 
Government should be deprived of it, and singularly little attention 
was given to the language. 

But here is a point that I want to call to the attention of the 
Senator from Ohio. When the language used is plain and suscep¬ 
tible of reasonable construction, you can not resort to the opinions 
expressed on the floor of the House of Representatives, because the 
people in ratifying this amendment had the right to act and are 
assumed to have acted upon the apparent meaning. 

Senator Pomerene. I concede your rule of construction. The 
only difference of opinion may be as to whether or not this is clear. 

Senator Robinson. That is what I am trying to show. 

Senator Walsh. If it were, we would not need the argument of the 
Senator. 

Senator Robinson. Perhaps if the Senator thinks this case calls 
for the consideration of debates contemporaneous with the adoption 
of the amendment, it may be a fair thing to go into that, but I think 
the authorities are abundant upon that point, that we are not at liberty 
to take the individual expressions of Members of the House of Rep¬ 
resentatives—I do not know that there is anything I would not be 
willing to stand by, but I am simply asserting this as a proposition 
of law—to explain the provisions of this amendment. 

In one case the court said the people had the right to presume that 
the amendment meant what it said, and you can not consider what was 
in the minds of Senators while they were framing it. The vital ques¬ 
tion is how the people in ratifying it construed it and the principle of 
law is that they have the right to construe it according to its ordinary 
meaning. 

Senator Pomerene. The thought has occurred to me that if it had 
been suggested in either House of Congress they would hardly have 
been willing to say as to one Senator, "We will allow the governor 
two years to appoint; as to another Senator, four years; and another 
Senator, six years.” 


THE SENATOR FROM ALABAMA. 


19 


Senator Robinson. The difficulty about that was that they could 
not tell when the amendment would go into effect. They had to 
adopt some general terms of exemption, because no one could antici¬ 
pate when the amendment would become effective. But my opinion 
is that if the matter had been fully presented the very language used 
here would have been used in forcing the construction I have given. 

I maintain since it has become so apparent that it is questioned 
here, that sound public policy requires the construction I am giving 
it, and the construction which some seem to have given it reflects 
upon the sense of fairness which Senators always demonstrate in 
dealing with great national questions. 

If you discard the plain meaning of the word “term” as used in the 
amendment what meaning will you give it? It has already been 
shown that in order to do this you must violate the fundamental 
rules of construction and deprive the State of Alabama of its equal 
representation in the Senate. What meaning will you give the word 
“term” in this case if you say it does not mean the six-year period for 
which Senator Johnston was chosen? Will you override every legal 
authority and precedent and declare that it means the natural life of 
Senator Johnston? Will you say that the term of a Senator chosen 
before the amendment became valid shall not be affected by the 
amendment provided he lives and serves until the end of his term or 
does not resign, but shall be affected by it if he does die or resign 
before the end of his term ? In order to give this meaning, you must 
not only violate every rule of construction heretofore referred to, but 
you must also write into the amendment words that are not used; 
words that contradict the meaning of the language actually used. 
Wliat justification is offered for such open violation of the fixed laws 
which govern the construction of constitutions ? 

The only other meaning that has been given to this amendment was 
that it would not affect the terms of Senators who happened to be for¬ 
tunate enough to be occupying seats on the floor of the United States 
Senate when this became effective, &nd they hold it can not apply to 
the term of a Senator as separate and apart from the Senator himself. 
In order to sustain that meaning you have to read into this amend¬ 
ment language which is not there, arid language which I say contra¬ 
dicts the meaning of the language actually used. You have to make 
it say, “This amendment shall not be construed so as to affect the elec¬ 
tion or that period of the term of a Senator during which he may 
choose to serve or during the period of his natural life within his 
term.” You have to read into the Constitution language that is not 
there, and every lawyer knows that that violates a primary rule of 
construction. 

Now, I ask this question: If you had to substitute for the word 
“term” of a Senator, what language would you use? You are enti¬ 
tled to substitute if there is a doubt as to the meaning of the words. 
You are entitled to substitute the words which define it. What lan¬ 
guage will you use? Will you say that it means, “This amendment 
shall not be so construed as to affect the period for which a Senator 
may choose to serve or may choose not to resign during the term for 
which he is elected,” or will you say, “It shall not be so construed as 
to affect the period of his natural life within that term” ? 

Senator Kenyon. Don't you read into it “The term of office for 
which elected” ? 


20 


THE SENATOR FROM ALABAMA. 


Senator Robinson. I do not; I simply take the word “term.” I 
take language which I have construed to be equivalent to “term.” 

Senator Kenyon. In other words, Senator, if some calamity 
should wipe out to-morrow the United States Senate—which we 
hope will not happen—not one successor could be elected by the 
people ? 

Senator Robinson. No successor to any Senator chosen before the 
amendment became valid. If Senators have been chosen- 

Senator Kenyon. But that is the point, that there would not be a 
Senator who could be elected by the people. 

Senator Robinson. Certainly, but I am going to show you that 
that is not an unreasonable thing- 

Senator Thompson. I noticed in these briefs that some lawyers 
hold it can only hold in any event to the next general election. Have 
you looked into that, as to whether or not that might be true ? 

Senator Robinson. I hardly think it is true; it means exactly what 
it says. I am contending for the plain and natural meaning of the 
language used, and I contend the language means the term for which 
elected. 

Senator Reed. Senator, I suppose we ought not to interrupt you 
at all, because a man ought to be permitted to go on and make his 
argument in his own way, but I want to ask you if you do not think 
that word “affect” in the sentence, “This amendment shall not be 
construed to affect the election”—and I jump the rest of it—is not 
used in the sense of “invalidate,” to invalidate the election? 

Senator Robinson. No. Was the Senator here when I discussed 
the word “ affect’’ ? 

Senator Reed. Yes, I was here, and that is why I am asking this 
question. You had a definition- 

Senator Robinson. How would the Senator then make it apply to 
term ? It would be meaningless. 

Senator Reed. I am talking about this being used in the sense of 
invalidation. You say that this Constitution ought to be construed 
according to its plain, ordinary meaning of words? 

Senator Robinson. Yes, sir. 

Senator Reed. Now, here was a situation we had to deal with. 
First, there was a Senate composed of Members whose terms of office 
expired at various times. We were adopting an entirely new and 
revolutionary method of selecting Senators, and we provided that the 
Senate should be composed of two men from each State, elected by the 
people. If that language had been allowed to stand without any 
qualification it might have been contended that as soon as it became 
a part of the Constitution the Senate was wiped out- 

Senator Robinson. No; I do not think that is true. 

Senator Reed (continuing). Or ceased to exist, and therefore it 
was necessary to make some provision that would cover that. Hence 
the language, “This amendment shall not be so construed as to affect 
the election of any Senator.” Now, is it not there used in the sense 
of “invalidate;” that is, to affect, to destroy, to set aside, to nullify 
the election of any Senator, the Senate being thus preserved ? I just 
suggest it to you. 

Senator Robinson. In the first place, I do not concede the propo¬ 
sition at all that any amendment which could be written except for an 






THE SENATOR FROM ALABAMA. 21 

express abolishment of the United States Senate could be construed 
to have that effect. I will discuss that a little bit later on. 

Senator Reed. If you will, I shall be glad to wait. 

Senator Robinson. I have already discussed the word “affect.” 
Now, if the word “affect” means invalidate as to election, it also 
modifies term, and it means invalidate the term. Suppose I sub¬ 
stitute the definition which the Senator from Missouri has given for 
the word “affect.” In my definition I have given the definition 
which the dictionary gives and which the courts have given in con¬ 
struing cases and constitutions and statutes almost exactly analo¬ 
gous to this, but the Senator from Missouri has suggested a definition 
for the word “affect,” that it shall mean invalidate. How would it 
read to say, “This amendment shall not be so construed as to invali¬ 
date the election,” or “invalidate the term”- 

Senator Reed. You would have to change the sense. Invalidate 
there would only apply to-- 

Senator Robinson. That is exactly what I anticipated. The 
Senator from Missouri says that the word “invalidate” will do; 
that the word “affect” in this amendment is used in two senses, 
used in one sense as applied to election and used in another sense 
as applied to term. And I suggest, Senators, that shows the cor¬ 
rectness of the construction I have placed on it, for it is a well- 
established rule of construction that you can not do that. You can 
not take one word and give it two meanings in one use. If the word 
“affect” means invalidate as to term, then it means invalidate as to 
election. I have given you the meaning which the courts approve, 
which is that of to act on, to change, or concern, and I have cited 
a large number of cases to that effect, and will print them in my 
brief, with permission. 

Now, if I may, I will proceed to a conclusion, and I have already 
bored the committee too long. 

If you say that to construe the words in their natural sense will 
postpone the operation of the new amendment in some cases, I answer 
that, according to every construction, that is true of the cases of all 
Senators sitting when the amendment became valid. Your con¬ 
struction postpones the operation of the amendment so that it will 
not affect the case of any Senator who serves to the end of his term, 
while the construction here urged only postpones in addition those 
terms where the Senators may die or resign before the end. of their 
term. The history of the Senate shows that probably five or six 
Senators will die or resign before the amendment becomes effective 
as to all Senators under my construction. In view of this fact, are 
you willing to say that the exemption was solely for the personal 
convenience of individuals, and in disregard of the convenience of the 
public? In 42 of the States the legislatures meet in odd years, the 
remainder in even years. That is, in 42 of the States the legislature 
will not again be in session Until after 1914. At least three of them 
meet only once in four years, so that in case of a vacancy in any State, 
with perhaps two or three exceptions, your construction will require 
extra sessions of the legislatures to authorize the governor to do the 
identical thing which under the old constitution can be done in this 
case by virtue of the saving clause in the new amendment, without 
an extra session of the Alabama legislature, which will not again 
meet in regular session until 1915. The construction here urged 




22 


THE SENATOR FROM ALABAMA. 


provides a reasonable transition period in which most of the legis¬ 
latures will probably meet in regular session, and in an orderly way 
change their laws so as to put into effect the amendment and provide 
for the election of Senators by the people. This construction con¬ 
forms to the fixed rules applicable to constitutional provisions, con¬ 
serve the convenience of individual Senators and also that of the 
general public by substituting the new amendment for the old pro¬ 
visions in such manner as to avoid the inconvenience and expense 
incident to extra sessions of the legislature. 

Boiled down, the proposition is simply this: That as to all Senators 
who are now in the Senate, or at any rate those who were in the 
Senate before the amendment became valid, it is conceded by all 
that they shall not be required to run for office again. It is just as 
expensive, just as inconvenient to the people of the States to call an 
extra session of the legislature or to hold a special election in the 
event of the death of a Senator as it is to choose the successor of a 
living Senator, and there is no reason in policy why every Senator 
on that floor should not be required to face his constituents and run 
for election. 

Is the Senate going to put itself in the attitude of saying that this 
great constitutional amendment, which was adopted pursuant to a 
well-recognized policy, was adopted solely for the convenience of 
Senators who were fortunate enough to be living and not to subserve 
the rights and convenience of the people themselves ? According to 
your construction it applies to perhaps 85 Members; according to my 
construction it applies to perhaps 90 Members. What is the dif¬ 
ference ? There is no substantial difference. Everybody agrees 
that as to those of us who were chosen before the amendment became 
valid—and that is nearly all of us—we are not to have to run again. 
It would not cost any more to require me to go back to Arkansas and 
run for the Senate than it would to require them to call an extra session 
of the legislature in case I were unfortunate enough to die or should 
choose to resign. And there is just as much sound sense and policy 
in exempting the term as there is in giving this narrow construction 
which makes the Senate and the Congress of the United States 
ridiculous in seeking to subserve the convenience of individuals 
instead of taking into consideration the convenience and welfare and 
expense and rights of the American people. 

According to that construction—the contrary construction to that 
which I urge—it applies to all who live. According to my construc¬ 
tion it was designed to prevent that disturbance and the possibility 
of that condition arising which has been suggested by the Senator 
from Missouri. I do not think it would be true at all if the Con¬ 
stitution had provided that every Senator of the United States 
should be elected and made no exemption; I do not believe it 
would have been retroactive; I think, according to all the rules of 
construction, it would not have been retroactive. But even if no 
machinery had been provided by the State which chose to carry into 
effect this provision of the Constitution, and even if there had been 
no exemption, I still think Senators would have been elected under 
the old method until at least reasonable opportunity had been afforded 
to put into operation the new method. 

Senator Pomerene. If I may interrupt you there, Senator, then in 
the case of the death of any Senator now who was qualified, say, on 


THE SENATOR FROM ALABAMA. 


23 


March 4 last, if there were a vacancy and the governor of the State 
should issue a writ of election to fill that vacancy and a Senator was 
in fact elected and presented his credentials at the bar of the Senate— 
in your judgment they should be rejected because he should have 
had his commission from the State legislature ? 

Senator Robinson. I should not say that in my judgment they 
should be rejected. I might choose to respect the expression of the 
will of the people. 

Senator Pomerene. I was speaking literally. 

Senator Robinson. My opinion is the election would be void, 
because the. amendment does not apply to that case. 

Senator Reed. If it was void the man would be without any 
authority whatever, and it would be our duty not to allow a wholly 
unauthorized man to take his seat. 

Senator Robinson. I think so, but I have heard half a dozen 
Senators—and I think there are Senators present who have heard the 
same expression—say that even if there were doubt they would 
not reject the credentials; they would resolve the doubt in favor of 
the State. But that is a hypothetical case, and it is one in which 
• my opinion is perhaps not of great value. 

Senator Thompson. There is no reason why the Senate could not 
seat him anyhow. 

Senator Robinson. The Senate being the only judge of the matter, 
there is no reason why they should not seat him anyhow. 

Senator Walsh. But the Senator desires to know what is your 
idea about the constitutional right. 

Senator Robinson. I have said I do not think any election except 
by the legislature would have been valid. The legislature would 
have the right to elect, of course. But I am sure the election by 
the people would not have been valid, because it is exempted from 
the operation of the new amendment and governed by the provision 
of the old amendment. 

The Chairman. It is your idea that if the Legislature of Alabama 
were to meet now and order an election under the second clause and 
the people proceeded to hold an election, that election would be void ? 

Senator Robinson. Yes. 

The Chairman. Just one further question, as I wish to carry a 
little further the illustration I gave you a little while ago. Take the 
case of the two Louisiana Senators. Senator RansdelTs term expires 
in 1919. His successor would have to be elected by the people. 
Senator Broussard’s term expires in 1921. Let us suppose that after 
Senator Ransdell’s successor had been elected by the people in 1918 
Senator Broussard should die, say, in 1919; his successor would have 
to be selected by the legislature- 

Senator Robinson. Yes, sir; that is an anomalous case. 

The Chairman. There you would have the anomaly of the people 
of Louisiana electing Senator Ransdell’s successor in 1918 and the 
legislature, after that, electing a successor to Senator Broussard. 

Senator Robinson. That is possible; yes. 

The Chairman. That is the logical result of your reasoning. 

Senator Robinson. Oh, no; it is not the logical result, it is the 
exceptional result. It would not happen anywhere else, and it would 
not happen there if it had not been for the peculiar time and manner 
in which they have seen fit to choose their Senators. 


24 


THE SENATOR FROM ALABAMA. 


Senator Walsh. Senator Robinson, will you please state again the 
arguments you say you have to advance, based upon the convenience 
and comfort of existing Senators ? I was not able to follow that. 

Senator Robinson. I have heard it said that the sole purpose of 
this amendment was to conserve the convenience of Senators by 
confining its application to the Members who happened to live, and 
to give it a personal application- 

Senator Walsh. How would it subserve their convenience ? 

Senator Robinson. By not requiring them to run again- 

Senator Walsh. Wiping the entire Senate out of existence. 

Senator Robinson. No; I have just said that would not occur 
under any circumstances. I have said that if the amendment had 
gone into immediate effect and no provision was in the amendment 
for the selection of Senators in any other way than by special elec¬ 
tions and special elections could not be held, I am sure the prevail¬ 
ing method would continue. 

The Senate in no circumstances would be destroyed. But that is 
a hypothetical case, as many of the others are that are suggested. 

Senator Reed. Senator, suppose this amendment had read this 
way: “This amendment shall not be so construed as to affect the 
election of any Senator chosen before it becomes valid as a part of 
the Constitution.” That would clearly seem to apply to elections, 
and cover such a case as Senator Broussard’s ? 

Senator Robinson. Yes. 

Senator Reed. Now, suppose it had read further: “Neither shall 
this amendment affect the term of any Senator chosen before it 
becomes a part of the Constitution.” Would not the plain meaning 
of that be that it will not affect the validity of his election, and 
neither should it lengthen or shorten his term ? 

Senator Robinson. Yes, certainly it would, but his term means 
the period for which he is elected. It has not a personal significa¬ 
tion at all. 

Senator Reed (reading): 

This amendment shall not be so construed as to affect the election of any Senator 
before it becomes valid as a part of the Constitution. 

That clearly preserves the election of the Senator. 

Neither shall this amendment affect the term of any Senator chosen before it becomes 
valid as a part of the Constitution. 

That is, his term would begin at the same time as it would if the 
amendment had not been adopted, and he would hold for the same 
period as if the amendment had not been adopted. 

Senator Robinson. And if he died or resigned, his term would run 
on in spite of that. Of course, I do not feet I am called upon to con¬ 
strue provisions that are widely different, but I think that means the 
same thing. 

Senator Reed. It is not widely different; it is exactly the language 
of the amendment, except we have coupled here this language. The 
language of the amendment is, “This amendment shall not be so con- 
construed as to affect the election’’—leaving out the term—“of any 
Senator chosen before it becomes valid as a part of the Constitution.” 
Now, the word “or” adds the word term, with the qualifying phrase, 
“or the term of any Senator chosen before it becomes valid as a part 




THE SENATOR FROM ALABAMA. 


25 


of the Constitution.” That is the identical language that is in here, 
but you simply repeat the qualifying phrase at the end. And it 
seems to me that it is perfectly plain that, drawn in that way, it has 
a very different meaning from that you give it. 

Senator Robinson.. The distinction which I seek to make, and 
which the Senator does not seem to grasp- 

Senator Reed. I catch your point that the term is a term, and that 
it can not be affected. 

Senator Robinson. I believe that even under the language you 
have used there it means the same as it means under the language 
that is used. And I think the fact that the word “ term ” was used 
and a more appropriate or apt expression was not used indicates that 
the construction you apply is erroneous. If you had used the word 
u tenure” there could have been no question in the world about the 
meaning. 

You can not think that the framers of this amendment were not 
sufficiently informed as to have available familiar and simple expres¬ 
sions like “tenure” or “seat” or “service.” Suppose the amend¬ 
ment had read, “It shall not be so construed as to affect the tenure of 
any Senator chosen before it becomes valid as a part of the Constitu¬ 
tion.” There would have been no trouble then; but the fact that 
these words were rejected—such words as “tenure” and “rights of,” 
or “service of,” or “seat of”—and this language used, shows that it 
was intended to mean something else than the mere tenure. 

Senator Kenyon. You draw no distinction between term of office 
and term of a Senator, do you ? 

Senator Robinson. None whatever. 

Senator Kenyon. The impersonal term of office you take to be the 
same as the personal term of a Senator ? 

Senator Robinson. Yes. 

Senator Kenyon. It seems to me that is a fundamental distinction. 

Senator Robinson. I have shown by cases here that the words 
“his term” mean the term of office. Certainly “his” is more per¬ 
sonal than “of a Senator”; certainly it is nearly synonymous with 
it. If the words “his term” do not have a personal application 
when construed by the courts, why should the words “of a Senator” ? 

Senator Kenyon. It seems to me that “term of office” is one thing 
and “term of a Senator” is another thing. The term dies with the 
Senator, but the term of office does not. 

Senator Robinson. No term expires with the Senator, according 
to any of the authorities which I have found. 

Senator Kenyon. This amendment says “term of the Senator.” 

Senator Robinson. That means “his term.” 

Senator Kenyon. Not the term of office of the Senator. 

Senator Robinson. It means the same thing, in my opinion. 

Senator Lea. The words “of office” are all added after the word 
“term,” at least in the California and Kentucky cases. 

Senator Robinson. No; the language is “his term of office.” 
That means- 

Senator Kenyon. This is all in one sentence, and in the first part 
of it you are clearly dealing with the election of a Senator. 

Senator Robinson. Yes; and that is not synonymous with his 
term. 




26 


THE SENATOR FROM ALABAMA. 


Senator Lea. I understand the Senator from Iowa makes a dis¬ 
tinction where the words “of office” are not added after the word 
“term.” 

Senator Robinson. I think the term the Senator means is term of 
office, because term of office means the period for which he is elected. 
The term of a Senator, I think, should be given a meaning separate 
and apart from the Senator himself, and I think if you will investi¬ 
gate the authorities you will find that is almost the universal con¬ 
clusion. 

Senator Lea. May I ask the Senator to turn to the Kentucky case 
for a moment and see if the language used is “his term of office.” 

Senator Robinson. Yes, “or during his term of office.” 

Senator Clarke of Arkansas. Let me ask you a question. If it is 
the purpose of the third clause to preserve the rights of the Senator 
in his election and his term, would that clause have any meaning at 
all if the other parts of the amendment seek to abridge his term ? 

Senator Robinson. None whatever. And without the use of that 
language the amendment would inevitably be so construed. I think 
the construction which some Senators seem disposed to give to the 
amendment implies the entire omission—the denial of any meaning 
at all. 

Senator Vardaman. Will the Senator please repeat that? 

Senator Clarke of Arkansas. I asked if the third clause were put 
in there for the purpose of preserving the individual rights of a sitting 
Senator in his term, would the same thing result if it were not there, 
if the other parts of the amendment undertook to abridge his term ? 

Senator Robinson. I think that is the inevitable conclusion from 
the reading of the plain language. And, as I have already said, you 
must give it some meaning. You can not say it is a repetition; that 
it is an idle expression. If that were left out of there, the Senator 
who is sitting would serve on without that language, so you must give 
it some meaning, and if you give it any meaning you can not escape 
the meaning which I have urged here. 

Now, I must hurry on, and I must apologize to the committee for 
taking so much of its time. 

Many eminent lawyers believe that a United States Senator is a 
“State officer/’ and that therefore the governor is authorized to 
appoint by the Alabama statute, giving him power to fill all vacancies 
in State offices by appointment. The Supreme Court of the United 
States in Burton’s case (202 U. S., at p. 369) expressly holds that a 
United States Senator is not an “officer under the Government of the 
United States.” The court points out the fact that while Senators 
participate in passing laws that concern the entire country, its 
Members are chosen by State legislatures, and can not properly be 
said, to hold their places under the Government of the United States. 
While this suggestion is worthy of consideration, I believe that it is 
not necessary in determining this case to hold that a United States 
Senator is a “State officer.” It is sufficient to demonstrate that Mr. 
Clayton has no term separate from that of his predecessor, Mr. 
Johnston, who was chosen—that is, elected—by the Alabama Legis¬ 
lature before the seventeenth amendment went into effect, and that 
Senator Clayton, if seated, will be serving an unexpired term of 
Senator Johnston. That term is not affected by the new amendment, 


THE SENATOR FROM ALABAMA. 


27 


and Mr. Clayton was therefore appointed under the old provision of 
the Constitution. Admittedly the new amendment is not self¬ 
executing, and even if it did not expressly exempt the term the 
authorities hold: 

Where legislation is necessary to give effect to a constitutional provision, laws in 
existence at the time of its adoption remain effective until legislation is had to enforce 
such provision. (American Enc. of Law, vol. 6, p. 920; Dodridge County v. Stout, 
9 W. Va., 703; Chahoon v. Com., 20 Gratton (Ya.), 733.) 

This principle of course can only be given a reasonable and prac¬ 
ticable application. It would not be invoked to support an unrea¬ 
sonable delay in enforcing the new amendment, but it is worthy of 
mention in this connection, as illustrating the policy that prevails in 
adopting new constitutional provisions. 

On the whole case Mr. Clayton is entitled to a seat in the Senate. 
Otherwise Alabama will be deprived until the meeting and action of 
her State legislature of her equal representation in the Senate. The 
exemption clause will be given but partial effect; great confusion and 
inconvenience will result to the public with no corresponding benefit. 
It is admitted that he would be seated if new authority to appoint had 
been conferred on the governor of Alabama since the adoption of the 
amendment. That authority exists in the Federal Constitution and 
in the existing laws of Alabama. It is the old constitutional pro¬ 
vision which governs this case, because it is within the exemption 
contained in the new amendment. 

Senator Kenyon. That Burton case is in reference to some par¬ 
ticular State ? 

Senator Robinson. Yes; it holds that a United States Senator is 
not an officer under the Government of the United States. I do not 
urge this construction. I was about to say that while I think it is 
worthy of consideration, I leave that for others to discuss. In this 
case I maintain, and I will restate my position- 

Senator Walsh. Before you go on with that, Senator, following the 
line of thought suggested by the question directed to you by your 
colleague, let us suppose that provision is not in the amendment at all, 
and then we will take Senator Jackson’s case. He is holding by 
appointment under the old constitution until the next session of the 
legislature, which shall then fill the vacancy. Now, suppose this pro¬ 
vision was not in there, but there is this other provision there, that 
in case of vacancies in the representation from any State the executive 
authority shall issue writs of election to fill the vacancy. Now, under 
those circumstances Senator Jackson would hold, not until the next 
session of the legislature, which could not then fill the vacancy unless 
your construction is right. How long then would Senator Jackson 
hold? 

Senator Robinson. I do not think I grasp the significance of your 
inquiry. My understanding of the matter is this, that if there were 
no saving clause there as to all Senators who had been elected pre¬ 
vious to the adoption of this amendment they would not be disturbed. 
As to a Senator who has been temporarily appointed, if there were no 
saving clause, the new method would prevail, and I understand that 
to be Senator Jackson’s case. 

Senator Walsh. Exactly. How long would he then hold ? Until 
the governor could call an election ? 



28 


THE SENATOR FROM ALABAMA. 


Senator Robinson. He would hold until the meeting of the legis¬ 
lature, having been temporarily appointed before the amendment 
became effective. 

Senator Walsh. But we are assuming now that that clause has 
gone out, the clause you are talking about. 

Senator Robinson. He was appointed under the old provision. It 
would not invalidate his seat. He would stay on here just as long 
as he would if the new amendment had not been adopted, but there 
is this difference: Since the new amendment has been adopted and 
if there were no saving clause, when he came to be chosen, instead 
of being elected by the legislature he would have to be chosen by the 
people unless the legislature authorized the governor to make the 
temporary appointment pending an election. I think that is un¬ 
questionably true. 

Now I will proceed to close. I want to restate my position and 
conclude. 

This whole question depends upon giving meaning and effect to 
the last clause of the seventeenth amendment. In order to deny 
Mr. Clayton’s seat, in my judgment, you must make that clause mean 
nothing, deny it any meaning whatever. In addition to that, you 
must violate the fixed rules of constitutional construction, read into 
the amendment language that is not there, presume that the framers 
of the amendment used inapt expressions when apt expressions were 
available, and used these words out of their natural and ordinary 
sense. Public policy does neither warrant nor require any such 
construction. 

So far as I am concerned, Senators, I have concluded. 

Senator Bankhead. Mr. Chairman, I have the honor and pleasure 
of presenting to the committee Mr. Robert B. Evins, of Alabama, 
who, under the laws of that State, is the legal adviser of the governor. 
He will now present the governor’s views and his own. 

The Chairman. We will be glad to hear him. 

ARGUMENT OF HON. ROBERT B. EVINS, LEGAL ADVISER OF 
THE GOVERNOR OF ALABAMA. 

Air. Evins. Mr. Chairman and gentlemen of the committee, I am 
profoundly conscious of the personal privilege and the professional 
honor which I enjoy in being permitted to address myself to a com¬ 
mittee of the United States Senate in support of the official action of 
the governor of a sovereign State. And I may perhaps, Mr. Chair¬ 
man, with propriety observe that if any circumstance had been want¬ 
ing to deeply impress me with the momentous character and the 
gravity of the question presented, it was furnished this afternoon 
when I heard the President of the United States deliver to its assem¬ 
bled Congress the message for which the civilized world was listening, 
and reflected that in that august assemblage there was in representa¬ 
tion from the State of Alabama a seat without an occupant. Grave, 
indeed, Mr. Chairman, must be the doubt; strict, indeed, must be the 
construction of the law which will deny for even a limited period to 
a State of the American Union that equal participation in the coun¬ 
cils of the Nation to which it is entitled under the express guaranties 
of the Federal Constitution. 


THE SENATOR FROM ALABAMA. 


29 


I shall not, Mr. Chairman, attempt to travel over any of the ground 
that Senator Robinson has so fully covered. That the position as¬ 
sumed by him is based upon sound principles of law, I entertain a 
profound conviction; nor shall I, Mr. Chairman, enlarge upon the 
proposition which I believe to be sound, that in the absence of au¬ 
thority to fill an office the governor of a State has as a prerogative 
of the executive office the right to act. A part of the duty enjoined 
upon governors—at least upon the governor of Alabama, and I take 
it upon the executives of all States by the constitution of the State— 
is to see to it that the laws are faithfully executed. Laws, Mr. Chair¬ 
man, can not be executed without officers of the law, and if there be 
no officers of the law the governor is unable to see that the laws are 
executed. There has never been a grant of power, there has never 
been a duty enjoined by law upon any person, as to which every court 
in the world has not held that there went with that grant of power 
or accompanied that injunction of duty as an implied part of the 
grant every power that was necessary to give it effect. 

If the governor of Alabama be enjoined by the constitution of the 
State to see that the laws are faithfully executed, if the laws can 
not be executed without officers of the law, would not the injunction 
of that duty carry with it, as an implied power, the right to fill 
that office and see that the people of his State had the service which 
they were entitled to expect? I do not press that, Mr. Chairman, 
because there is in our State a statute which I shall show, I believe, 
beyond a reasonable doubt, to the members of this committee is 
applicable to this case and which governs it completely. I read, 
Mr. Chairman, an act which was approved on the 25th of August, 
1909, and which is found in the special sessions of the Alabama 
Legislature of 1909, on page 156, 

[No. 65—H. 55.] 


An Act To provide for the filling of any vacant oflice of the State, or any county, or any municipality, 
when there is no provision of law for filling such vacancy. 

Be it enacted by the Legislature of Alabama: 

1. That when any office of the State, of any county, or municipality thereof, is 
vacant from death, resignation, removal from the municipality, county, or State, 
or because the former incumbent absconds, or because an incumbent has been removed 
for ineligibility, or when the office is vacant from any other cause, and there is no 
way provided by law for the filling of such vacant office, the governor is hereby empow¬ 
ered and required to appoint a qualified person to fill the unexpired term of such 
office. 

Approved August 25, 1909. 

The first question arising upon the consideration of that act, of 
course, is: Is a Senator of the United States an officer of the State ? 
I propose to show to this committee, from the Constitution of the 
United States itself, from the decision of the most eminent authority 
in this country, from the language of the most approved text writers, 
from the very circumstances surrounding his creation and his exist¬ 
ence, that a member of the United States Senate is and can be none 
other than an officer of the State from which he comes. I call 
attention, first, Mr. Chairman- 

Senator Thompson. Have you a brief on this question ? 


7674—13-3 




30 


THE SENATOR FROM ALABAMA. 


Mr. Eyins. Not on this question, but I will be very happy to 
furnish the committee with one. 

The first section of the first article of the Constitution is as follows: 

All legislative powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and House of Representatives. 

Mr. Chairman, the framers of this Constitution were not only men 
who were deeply learned in all the science of government, but they 
were masters of the English language, they were men who knew the 
evils that could flow from loose and inaccurate methods of expres¬ 
sion, and there is not a word in this instrument that is not chosen 
with the most delicate care to express the most precise shades of 
meaning. 

Now, in what was the legislative power granted by this instrument 
vested? In a “Congress of the United States.” What is a “Con¬ 
gress”? I read from Webster’s International Dictionary: 

A congress is a form of assembly, as of princes, deputies, representatives, envoys, 
or commissioners, especially a meeting of the representatives of several governments 
or societies to consider or determine matters of common interest. 

The legislative powers granted by the Constitution, then, were 
vested in a Congress of the United States—that is, in a conclave or 
meeting of the States themselves, which were united under this article. 
The collective representation of the State of Alabama or of any State 
in this Union represents, stands for, and is that State in the National 
Council. It may be that there are Senators who served during the 
service of Gen. Morgan, from Alabama; and if so they will no doubt 
recall that comprehensive student of the science of Government, that 
lucid and profound thinker along lines of constitutional law, always 
referred to himself in the occupancy of his office as an “ambassador 
from the State of Alabama.” 

That is the first proposition in the Constitution to which I desire to 
call your attention-—that the assembled Congress is the assembled 
States acting through their representatives. Every Senator in the 
Chamber represents a State. What is a representative ? He is some 
one who stands for and in place of a principal. And whose agent can 
he be but the principal’s? From whom can he derive his authority 
but from the principal whom he represents? From whom can any 
Senator, legally commissioned to serve, derive the authority he exer¬ 
cises but from the State from which he is commissioned? What 
authority commissions a Senator? Does any Federal authority? 
Every Senator is commissioned by the governor of his State, and in 
those cases—I believe since Mr. Jefferson’s time, perhaps, there have 
been some instances when Senators have voluntarily laid down the 
burdens of office—to whom did they return their commissions ? To 
the Vice President; to the presiding officer of the Senate; to the Presi¬ 
dent ? They lay down the authority they have been exercising into 
the hands of the chief executive of the State from whom they have 
derived it and whom they represent. 

A little further in the Constitution—-I read from section 6, of 
Article I: 

And no Senator or Representative shall, during the time for which he was elected, 
be assigned to any civil office under the authority of the United States, which shall 
have been created, or the emoluments whereof shall have been increased during such 
time; and no person holding any office under the United States shall be a Member 
of either House during his continuance in office. 


THE SENATOR FROM ALABAMA. 


31 


No Member of the Senate can hold any office under the United 
States without disqualifying himself to remain a Senator. If the act 
of becoming a Senator constitutes the disqualification, we are pre¬ 
sented, Mr. Chairman, with an intellectual problem like that physical 
phenomenon of the two snakes, which undertook to swallow each 
other by the tails, and finally both disappeared. The very fact of 
filling the office can not constitute a disqualifying clause, and yet if a 
Senator of the United States is an officer under the Federal Govern¬ 
ment, he immediately becomes disqualified by accepting the office. 
The act of occupying the office, if he thereby becomes an officer of 
the United States, disqualifies him. 

There is a still further provision of the Federal Constitution to which 
I desire to direct your attention, and that is section 1 of Article II, 
relating to qualifications of electors: 

* * * But no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

No Senator- 

Senator Kenyon. What section was that ? 

Mr. Evins. That is section 1 of Article II, the second paragraph 
of section 1 of Article II: 

No Senator or Representative, or person holding an office of trust or profit under 
the United States, shall be appointed an elector. 

The office of Senator is an office of both trust and profit, and if he 
is an officer under the United States Government why was it neces¬ 
sary to name him particularly in addition to the class in which he 
would belong? Under the clearest, the most emphatic declarations 
of the Constitution, there is a broad distinction drawn between an 
officer of the United States Government and a Senator of the United 
» States. 

That, Mr. Chairman, is not my construction alone. Discussing 
that section, Mr. Tucker, in his work on the Constitution, in Vol¬ 
ume II, on page 696, says—this clause precedes the one from which 
I have been reading and quotes what I have read: 

But no Senator or Representative, or person holding an office of trust or profit under 
the United States, shall be appointed an elector. 

Now, he comments on that: 

This clause is suggestive of what is just above stated, that neither a Senator nor 
Representative is a person holding an office of trust or profit under the United States; 
such hold under the State represented by them, not under the United States. 

And I might say, Mr. Chairman, that if there is in existence an 
authority holding to the contrary, that a Senator is an officer of 
the United States, or even intimating to that effect, it has escaped 
the most diligent inquiry that I have been able to give the subject. 
But that is not all on the subject- 

Senator Thompson. Have you the Burton case there ? 

Mr. Evins. Yes, sir; I am going to read from the Burton case 
now. 

The Supreme Court of the United States has had this under con¬ 
sideration. Mr. Burton, who was a Senator, was convicted of a 
crime, and, in the judgment of conviction, the judge rendering it 
put in a disqualifying clause, “to hold office under the United 
States.” He did that by virtue of a statute of the United States, 
which provided that any person convicted of a crime should never 






32 


THE SENATOR FROM ALABAMA. 


thereafter be qualified to hold office under the United States. The 
question arose in that way. The opinion was rendered by Mr 
Justice Harlan. It is, so far as pertinent, as follows: 

Allusion has been made to that part of the judgment declaring that the accused, by 
his conviction, is rendered forever hereafter incapable of holding any office of honor, 
trust, or profit under the Government of the United States. 

That judgment, it is argued, is inconsistent with the constitutional 
right of a Senator to hold his place for the full term for which he was 
elected, and operates of its own force to exclude a convicted Senator 
from the Senate, although that body alone has the power to expel its 
Members. We answer that the above words, in the concluding part 
of the judgment of conviction, do nothing more than declare or recite 
what, in the opinion of the trial court, is the legal effect attending or 
following a conviction under the statute. They might well have 
been omitted from the judgment. By its own force, without the aid 
of such words in the judgment, the statute makes one convicted under 
it incapable forever thereafter of holding any office of honor, trust, or 
profit under Government of the United States. But the final judg¬ 
ment of conviction did not operate, ipso facto, to vacate the seat of 
the convicted Senator, nor compel the Senate to compel him or to 
regard him as expelled by force alone of the judgment. The seat into 
which he was originally inducted as a Senator from Kansas could 
only become vacant by his death, or by expiration of his term of 
office, or by some direct action on the part of the Senate in the exer¬ 
cise of its constitutional powers. This must be so for the further 
reason that the declaration in section 1782, that anyone convicted 
under its provisions shall be incapable of holding any office of honor, 
trust, or profit “under the Government of the United States” refers 
only to offices created by or existing under the direct authority of 
the National Government as organized under the Constitution, and 
not to offices the appointments to which are made by the States, 
acting separately, albeit proceeding, in respect of such appointments, 
under the sanction of that instrument. While the Senate, as a 
branch of the legislative department, owes its existence to the 
Constitution, and participates in passing laws that concern the entire 
country, its Members are chosen by State legislatures, and can not 
properly be said to hold their places “ under the Government of the 
United States.” 

They have held, Mr. Chairman, that a Senator holds an office, he is 
an officer—he is an officer either under the State or under the United 
States, and if he is an officer under the United States he becomes, by 
an eliminative process of reasoning, necessarily, an officer under the 
State. And it is shown affirmatively, I contend, by the necessary 
implications in the Constitution, under the direct authority of the 
text writers and under the decision of the Supreme Court of the 
United States, that he is beyond doubt an officer of the State from 
which he is commissioned, to which he will return his commission if 
he resigns, and not to that general conclave of States in which he is a 
representative. 

One other question might be suggested, Mr. Chairman, in connec¬ 
tion with this statute, which I have read, and that is this- 

Senator Pomerene. Will it interrupt you if I ask a question ? 

Mr. Evins. Not in the least; I will be glad to answer your question. 



THE SENATOR FROM ALABAMA. 


33 


Senator Pomerene. Has that section of your constitution been 
construed by your Federal court or State courts ? 

Mr. Evins. This act that I am reading? 

Senator Pomerene. Oh, it was a statute you were reading. 

Mr. Evins. Yes, sir. 

Senator Pomerene. Has the statute vou were reading: been con¬ 
strued ? 

Mr. Evins. I am going to read to you a decision of the Supreme 
Court of Alabama that construes an act, in principle, along the line 
that you have in mind, Senator. The particular act has not been 
construed. I was going to suggest that possibly another objection 
might be raised to the application of this act, which, to my mind, 
is wholly without merit,* and that is that having been passed before 
the seventeenth amendment became operative as a part of the Con¬ 
stitution, that the contingency here presented might not have been 
within the contemplation of the legislature, and therefore would not 
apply to this act, assuming a Senator to be an officer of the State. 
The answer to that, Mr. Chairman, is furnished not only through a 
process of reasoning, but by the universal weight of authority, par¬ 
ticularly by an unbroken line of decisions that obtain in the State of 
Alabama, one or two of which I will call attention of the committee 
to. All laws, or practically all laws, excepting some few that by 
their terms have a retroactive effect, are made for the future—to 
operate on future contingencies, to operate on conditions which in 
many instances can not possibly be known by the legislature. For 
example, there is in Alabama, as in all States, a statute defining and 
punishing homicide, which has been in existence without change for 
probably three-quarters of a century. 

No one could for an instant contend that when the legislature 
passed that act originally they had in contemplation any individual, 
or the circumstances under which any individual might commit a 
murder in Alabama to-morrow, but he would be punished under the 
provisions of that statute, although he possibly was not born at the 
time it was passed, because the legislature was, and in most cases it 
does provide a system to act on contingencies occurring in specified 
events. The legislature—and I desire, before I go further into that, 
Mr. Chairman, to advert very briefly to one other proposition—the 
legislature did have in mind—I do not say it as a fact, but as a neces¬ 
sary legal conclusion—the legislature did have in mind this con¬ 
tingency. Why ? A Senator being a State officer, the legislature is 
bound to have known that fact. What did this act undertake to do ? 
Was there any exception of any State office when provision was made 
by the act for filling any office of the State—if not confined to those 
existing, not confined to those for which there was a legal authority 
for filling a vacancy, but any office of the State thereafter created, 
not in contemplation even, which should become vacant from any 
cause, should, if no legal authority existed, otherwise be filled by 
the governor- 

Senator Pomerene. When was that section adopted? 

Mr. Evins. On August 25, 1909. 

Senator Pomerene. The Federal Constitution, prior to this 
amendment, gave the authority to the governor to fill the vacancies 
temporarily ? 

Mr. Evins. Yes, sir. 



34 


THE SENATOR FROM ALABAMA. 


Senator Pomerene. So that the legislature must have had in mind 
at the time this act was passed, and it was not necessary to provide 
for the appointment of the United States Senator by the governor ? 

Mr. Evins. The primary purpose of this act, if you please, as 
clearly shown on the face of the act, was this: That under no con¬ 
tingencies, at no time in the future, should the people of Alabama ever 
be deprived of rights to which they were entitled under the law by 
reason of the absence of some officer to discharge the duties of an 
office by reason of the fact that there was no authority of law to fill 
a vacancy. It was the design and the purpose of this act to put it 
beyond any accident of law, beyond any possibility of action any¬ 
where, that should there ever be a time when the people of Alabama 
should be deprived of the services of any State officer—there is not 
any exception whatever—of any State officer through the nonexist¬ 
ence of a legal authority to fill the office. 

If a Senator is a State officer, he is certainly included in the class 
that is comprehended in the terms “any State officer.” 

Senator Reed. Will you pardon me if I ask a question ? 

Mr. Evins. Certainly so, sir; I will answer it with pleasure. 

Senator Reed. Would you contend that a Senator is an officer of 
the State ? 

Mr. Evins. Yes, sir. 

Senator Reed. Do you contend, therefore, that the State may 
select the Senator in any way it sees fit ? 

Mr. Evins. I do not, sir. There is a contract existing, evidenced 
by this Constitution, between the confederate members of the Federal 
Union as to the method by which those Senators shall be selected. 

Senator Reed. And that brings us back, then, to the question as 
to whether this particular selection has been made in accordance with 
the Constitution ? 

Mr. Evins. Yes, sir. 

Senator Reed. So that the statute does not cut any figure, pro¬ 
vided the governor does not under the Constitution have the author¬ 
ity; that is to say, the State can give him the authority to act pro¬ 
vided the Constitution has previously given it ? 

Mr. Evins. Yes, sir. 

Senator Reed. But if the Constitution has not given it, then, of 
course, this statute would not avail; and that brings us down to the 
main question again. We get right back, do we not, to the same 
point ? 

Mr. Evins. I want to give you my views on the question. 

Senator Reed. I am not indicating how I feel, but I want to get 
your views. 

Mr. Evins. I am very happy to give them to you, because I want 
to say very candidly to the committee that if I "am mistaken in the 
legal position which I take no one will be more prompt to acknowl¬ 
edge it, if I can be shown, than I. 

I am arguing this from the proposition—I am taking as the predi¬ 
cate of my argument—assuming, sir, that the seventeenth amend¬ 
ment to the Constitution became operative in Alabama the moment 
Senator Johnston died. I do not believe that is the law, but I am 
assuming that as the predicate of this argument. If so,' under the 
express terms of the amendment the legislature of the State was 
empowered to authorize the governor to fill the vacancy thereby 


THE SENATOR FROM ALABAMA. 


35 


existing temporarily. If an authority already existed to meet such 
a possible contingency as this, what possible reason could the gover¬ 
nor give for incurring vast expense to call the legislature again together 
to ask them to reiterate the words of this statute ? 

Senator Reed. I agree with you that this statute is broad enough 
to go into the future. I do not think it is necessary to meet and pass 
this statute over again. 

Mr. Evins. Yes, sir. 

Senator Reed. I agree with you on that. 

Senator Thompson. That is, 'if it includes Senators. 

Mr. Evins. If a Senator is a State officer. 

Senator Thompson. If it is included within the meaning of this 
statute. 

Senator Clapp. Just a moment. 

Mr. Evins. With pleasure, sir. 

Senator Clapp. Can there be any question at all but what if to¬ 
day, under the constitutional amendment, the Legislature of Ala¬ 
bama passed a law just in the terms of the law you read that would 
cover the authority to appoint these Senators ? 

Mr. Evins. I do not think there can be, sir. I think, that law 
being in existence which I have read, if the legislature were called 
together it would be justified in declining to pass a law authorizing 
the governor to temporarily fill a vacancy, on the ground that the 
authority was already given by the act I have read. 

Senator Clapp. I am assuming, of course, that legislation were 
necessary. 

Mr. Evins. Yes, sir. So, it seems to me, that this statute exist¬ 
ing in the State of Alabama is all the authority the executive could 
ask; and, indeed, under its terms, he would be guilty of a dereliction 
of duty if he did not act under it, because it not only uses the express 
word of the amendment, “empowered,” but the further mandatory 
word “required.” It is upon him a mandatory duty. 

Senator Vardaman. In other words, he made that appointment 
under that rather than the Constitution prior to the adoption of the 
seventeenth amendment. 

Mr. Evins. Not quite, sir. My contention is this: That if—I am 
arguing from a premise that does not entirely accord with my view 
of the law—I do not think the amendment is now operative as to 
Senator Johnston’s term; but taking the other side of the argu¬ 
ment, even if it is, then under this authority the governor of Alabama 
had the express authority from the express source that the amend¬ 
ment said he should have before exercising the power of appointment. 

Senator Reed. In other words, you claim this, that that section 
of the statute meets this provision of the Constitution, namely, that 
the legislature of any State may empower the executive thereof to 
make temporary appointments until the people fill the vacancy by 
election, as the legislature may direct ? 

Mr. Evins. That is precisely my contention. 

Senator Reed. And you say that the legislature having already 
empowered him to appoint any officer of the State—a Senator being 
an officer of the State—that the statute is of just the same effect as 
though the legislature had met and recited that the vacancy having 
occurred in the office of Senator that the governor is hereby authorized 
to appoint a successor to Senator Johnston ? 


36 


THE SENATOR FROM ALABAMA. 


Mr. Eyins. Yes, sir. 

Now, as supporting that view, I am going to read a little extract 
from one or two of the books I have with me. 

Statutes like this in principle—exercising the power of the legislature 
to pass a statute which shall become operative on a condition which 
was not in existence or contemplated when the statute was passed—- 
have been expressly decided time and again by the Supreme Court 
of Alabama to be within legislative competency. I take it the same 
rule would prevail in the Senate with reference to an Alabama 
statute that prevails in the Federal courts, and with which all law¬ 
yers are familiar, namely, that where a statute of a State has received 
the construction of the supreme court of that State, the Federal 
court, passing on that statute, will give it the same construction—are 
bound by the construction of the State court. 

Senator Thompson. You say a similar statute to this has been 
construed ? 

Senator Johnson. Any statute. 

Mr. Evins. No; the particular statute has not been construed. But 
the general rule is that a statute operates on conditions which have 
come into existence long after the statute was enacted, but were not 
in existence- 

Senator Thompson. Is not that fundamental? 

Mr. Evins. I think it is, and I will be very glad to be relieved- 

Senator Walsh. Do not defer the reading of your authorities, if 
you think it will illuminate your argument. 

Mr. Evins. Thank you. 

Well, then, on this proposition, at the time this statute was passed 
the present situation with reference to the Senate of the United 
States did not exist. The governor at the time this statute was 
passed, assuming the amendment to be now operative, did not have 
the power to appoint a Senator, nor was a Senator elected by the 
people; but he was a State officer. So, my contention is that this 
statute providing that whenever any State office becomes vacant, 
if other legal authority did not exist to fill it—the governor was 
empowered and required to fill it—operates now on this condition as 
if it existed at the very time this statute was passed. 

Senator Johnson. Will you pardon me just a question? 

Mr. Evins. Yes, sir. 

Senator Johnson. But at the time that statute was passed, it 
could have had the authority to fill a vacancy in the office of Senator, 
not by virtue of a statute, but by virtue of the Constitution of the 
United States? 

Mr. Evins. Yes, sir. 

It was not an impossible contingency that the Constitution of the 
United States might some day be so changed, because it itself pro¬ 
vided for it, and there was a legal possibility at all times that this or 
any other amendment might be passed/ The political principle 
which is embodied in the seventeenth amendment is not a new one 
to the American people. It has been urged not only in some papers 
and magazines for years, but I understand that for years tentative 
propositions have been pending in Congress to enact this very legis¬ 
lation. So not only was it a contingency by the terms of the Con¬ 
stitution itself, which permitted an amendment that any provision 




THE SENATOR FROM ALABAMA. 37 

might be changed, but there was something to direct the public 
mind to the fact that this very amendment might be made. 

I read now from Griffin v. Drenner (145 Ala.) on the proposition 
that I have just adverted to. That you may understand the ruling 
I explain that there is a provision of our constitution which requires 
that all local laws—and it defines “local laws” as being those 
restricted to some particular territory in the State—“ shall, before 
they are introduced into the legislature, be advertised for a period of 
time in the community in which they are to operate,” and unless 
notice of such advertisement appears on the journals, the law is 
stricken down. 

The statute here under consideration was one which provided for 
and fixed the salaries of mayors in all towns and cities of the State of 
Alabama of over 35,000 people. 

Senator Reed. Salaries of what? 

Mr. Evins. Mayors; presiding officers of towns of over 35,000 
people. This law was attacked on the proposition that it was a local 
law; that it operated on only four or five places in the State; that it 
operated in Birmingham, Montgomery, and Mobile, and in three or 
four other places, and that as to the rest of the State it did not apply, 
and that therefore of necessity it was a local law and no notice of 
advertisement appearing on the journals it was invalid. The court 
said— 

Not so; it is a general law, because every village in the State of Alabama may in 
the course of time become a city of 35,000 inhabitants, and the instant that it does so 
the provisions of this act will apply; and therefore the act is general in its character. 

Gentlemen, there were at that time in the State of Alabama per¬ 
haps a hundred villages that, in all the stretch of time, will not in 
any reasonable probability contain 35,000 people. It was far less 
probable that they would contain 35,000 people than that the Senate 
would pass this amendment to the Constitution of the United States. 
Yet the court held in this case, in 145 Alabama, that thaf was a 
general law, because that act, though suspended as to cities not then 
of the requisite population, became operative as to them as soon as 
they did so. 

Senator Reed. That has been repeatedly held in Missouri ? 

Mr. Evins. Yes, sir; and I want to read one case from one of the 
greatest courts in the United States, in my opinion. 

Senator Thompson. Kansas, I presume ? 

Mr. Evins. I have Kansas in mind, but this happens to be from 
the Supreme Court of Ohio. This was one of those sorts of statutes 
about municipalities, and the Supreme Court of Ohio on the same 
proposition of nonuniform operation had this to say: 

As the statutes- 

Senator Thompson. What part are you reading from ? 

Mr. Evins. I am reading 26 L. R. A. (319), the opinion being 
delivered by Judge Burket: 

As the statutes affecting different cities and villages of different classes practically 
do not operate in every part of the State, but only where a city or village of the par¬ 
ticular class is found, it might seem that such laws do not operate uniformly through¬ 
out the State. A moment’s reflection will show that this is not so. If a new city or 
village of a particular class should be filled up in the wildest part of the State— 


38 


THE SENATOR FROM ALABAMA. 


One not in the contemplation of the legislature that there would 
ever be a city— 

the statutes applicable to such class of city or villages would be found to be enforced 
there, and in that sense all statutes applicable to different classes of cities and villages 
are in uniform operation in every part of the State. 

I do not think there is a State in the Union that has held contrary 
to that. It is the general principle laid down in the digests and in 
the textbooks. 

So, gentlemen, the position which I have endeavored to maintain 
before you, to recapitulate briefly, is this- 

Senator Reed. Before you do that, won’t you kindly read that sec¬ 
tion of your statute again ? 

Mr. Evins. With pleasure. 

Senator Reed. Or give me the book and I will not bother you 
about it. 

(Mr. Evins here gave to Senator Reed the book desired.) 

Senator Kenyon. Won’t you have that copied in the record in 
some way ? 

Mr. Evins. I will take pleasure in doing so. 

Senator Pomerene. I would like to ask that you insert in your 
remarks any sections of your constitution or of your statutes which 
you may think may shed light on this proposition. 

Mr. Evins. I will do so with a great deal of pleasure. I do not at 
this time recall any or I should have announced them in my argument. 

My position, to briefly recapitulate, gentlemen, is simply that a 
Senator, a member of the United States Senate, is an officer of the 
State. No other construction is compatible with the expressed lan¬ 
guage of the Constitution, with the expressed language of the text- 
writers, or with the direct authority of the Supreme Court of the 
United States, or the circumstances under which he receives or resigns 
his commission. Being such he comes within the operation of that 
statute, which provides for the filling of the vacancy in any State 
office. That statute comes within the provision of the amendment 
which provides that the legislature may empower the governor to fill 
the existing vacancy. I can not conclude what I had intended to say 
without returning my thanks to the committee for the courtesy, 
patience, and kind attention which they have accorded me. 

Senator Pomerene. Your position is that his status is determined 
by his commission and not by the authority which he exercises ? 

Mr. Evins. Not altogether, sir. I say that is merely an eviden¬ 
tiary fact. My idea is just simply this:‘The Congress of the United 
States is in legal theory the States themselves assembled. A cor¬ 
poration can not do personal acts. To illustrate what I mean, per¬ 
mit me to say just one thing further. I was present in the Federal 
court a few days ago when a case against the Western Union Telegraph 
Co. was on trial. Damages were being claimed for the negligent 
delay in the delivery of a message. It developed in the testimony 
that a very small boy, 7 or 8 years old, was the carrier of the message, 
and that he had loitered along the way, as little boys will, playing 
marbles or something, and the message did not get there’in tune 
The Federal judge in his charge to the jury said to them that a cor¬ 
poration could act only through its agents—following, of course, the 
law—and he said to them, “I charge you, gentlemen, that that little 



THE SENATOR FROM ALABAMA. 


39 


boy, within the scope of his authority, was the Western Union Tele¬ 
graph Co. ; and he charged the law correctly, as every lawyer 
knows. 

Now, I say that the aggregate representation of every State in Con¬ 
gress is the State itself. How else could there be a congress of States? 
It is not a congress of men. It is a congress of States—the State of 
Alabama and the State of Ohio; the State of Alabama and the State 
of Ohio can not come in proper person here to Washington, so they 
have to come like the telegraph company did, through their agents. 

Senator Reed. Had you concluded that point? 

Mr. Evins. Yes, sir. 

Senator Reed. I wanted to get your views on this: Under this 
statute—and I scan it a little, cutting out the surplusage—“ when any 
officer of the State”- 

Mr. Evins. When any “office” of the State. 

Senator Reed. “When any office of the State becomes vacant, the 
governor is hereby empowered and required to appoint a qualified 
person to fill the unexpired term of office.” 

Mr. Evins. Yes, sir. 

Senator Reed. Under that statute, if the governor acted and 
the statute applies, we concede that- 

Mr. Evins. Yes, sir. 

Senator Reed. And the governor appointed Judge Clayton to the 
Senate, he would hold for the unexpired term of the office ? 

Mr. Evins. No, sir. 

Senator Reed. And the governor would have no authority to ap¬ 
point him under this statute, except for the unexpired term, would he ? 

Mr. Evins. No, sir; I do not go to that extent with you, and I am 
glad you mentioned that. 

Senator Reed. You are speaking of the statute. How did you 
change the wording of the statute itself? Would not that be the 
way—is not that his authority and his only authority ? 

Mr. Evins. A State statute, as I understand the law, is operative 
to the extent that it is not restrained by the State constitution, the 
Federal laws, or the Federal Constitution. If that statute gives a 
right, the right being compatible with the provisions of the Federal 
Constitution, but the extent to which the right is given being in¬ 
compatible with the Federal Constitution, the right would be pre¬ 
served to the extent that it was compatible with the Federal Con¬ 
stitution. 

Senator Reed. You concede that the language of the statute is in 
its application as to the length of time incompatible with the language 
of the Constitution ? 

Mr. Evins. I am not quite sure, sir. Have you a copy of the 
amendment ? 

Senator Reed. I have the amendment; I was going to call atten¬ 
tion to the language. It is this- 

Mr. Evins. The last clause, you say, says- 

Senator Reed. “Providing that the legislature of any State may 
empower the executive authority to make the temporary appoint¬ 
ments.” Now, in this it don't say for the unexpired term. 

Mr. Evins. I understander: 

Senator Reed. But it says until the people shall fill the vacancy by 
election, as the legislature may direct. The State statute giving its 






40 


THE SENATOR FROM ALABAMA. 


power as far as it can to fill the whole unexpired term of Senator 
Johnston, the Constitution of the United States, however, saying that 
a governor can not under any circumstances appoint for a longer 
period than until the election is held as the legislature may direct, 
which might be in 30 days, of course, or 10 days even. 

Mr. Evins. Or might be until the term expired. 

Senator Reed. Or might postpone it until the time expired. 
Plainly those two provisions are not identical. 

Mr. Evins. Even if they are not—that has received my considera¬ 
tion—as you well say, the legislature might postpone the election 
under the provisions of the amendment until the termination of the 
unexpired term. But any law that exists can be repealed by impli¬ 
cation in whole or in part. Suppose the Legislature of Alabama 
should pass a later statute in these words: “No appointment made by 
the governor to fill any State office shall continue beyond the period 
when an election may be held for that purpose.” Would that abro¬ 
gate that authority entirely? Would it not just- 

Senator Reed. That would modify it, but that springs from the 
same source that passed the law; but you would not claim, would you, 
that the Constitution of the United States could by implication repeal 
a State statute or any part of it ? 

Mr. Evins. I certainly do, sir. 

Senator Reed. You do? 

Mr. Evins. I certainly do. 

Senator Reed. I wanted to get your view on that. 

Mr. Evins. I think that any State statute of Alabama that is 
wholly in conflict with the Constitution of the United States or with 
any law of Congress is as void as if it had never been passed. 

Senator Reed. Oh, certainly, but it is not repealed by implica¬ 
tion; it is simply void because it is in conflict. 

Mr. Evins. That may be a difference in the instance mentioned. 
It is not repealed directly; it is repealed according to conflict up to 
a certain point. 

Senator Reed. You are trying to make your State statute fit a 
Federal statute, if we concede that a Senator was a State officer and 
that that was settled. 

Mr. Evins. I would like to get that conceded now. 

Senator Reed. What is that ? 

Mr. Evens. 1 would be very happy if you would concede that. 

Senator Reed. I am not prepared to do it. If your legislature had 
met and had passed an act which said that in the event of any 
vacancy occurring in the office of Senator it should be filled by appoint¬ 
ment until the next regular election was held, my present view is that 
that would cover the case. 

Mr. Evins. Yes, sir. 

Senator Reed. Because that would be consistent with this act and 
to my mind it is not necessary for the legislature to have met after¬ 
wards and passed a law. 

Mr. Evins. Yes, sir; I think that is true. 

Senator Reed. But you have got a statute here that provides that 
the governor shall appoint for the whole of the unexpired term of 
Senator Johnston if it applies at all? 

Mr. Evins. Yes, sir. 



THE SENATOR FROM ALABAMA. 


41 


Senator Reed. Whereas the Constitution of the United States 
says that all he can do is to appoint until such time as an election can 
be held, as the legislature may direct ? 

Mr. Evins. Yes, sir. 

Senator Reed. And you have got two different propositions there ? 

Mr. Evins. Here is my idea as to that: The provision in the 
seventeenth amendment may affect the tenure under which Judge 
Clayton holds; it does not affect the right to enter upon the office. 

Senator Thompson. In other words, the amendment would control 
as to the Federal office? 

Mr. Evins. Absolutely so. I think that wherever a State statute 
is in conflict in whole—I know that wherever a State statute is in 
conflict in whole with the Federal Constitution it is absolutely void. 
I believe—my idea of the law is that where it is in conflict in part it is 
valid up to the point where it comes in conflict, and there ceases 
and is of no effect. 

Senator Reed. What would be your suggestion on this: If the 
framers of the Constitution or the adopters in the States, taking the 
plain language that it implies this, that there shall be an election by 
the people, that the authority and purpose was to put the election 
in the hands of the people absolutely, and that is made without any 
exception in the first part of the amendment- 

Mr. Evins. Yes, sir. 

Senator Reed. Then comes the provision— 

Provided , however , That the legislature of a State may empower the executive 
thereof to make temporary appointments until the people fill the vacancy by elec¬ 
tion, as the legislature may direct. 

Mr. Evins. Yes, sir. 

Senator Reed. What is your view now as to whether or not it was 
not the purpose of this amendment to preserve to the people this 
right of election and to make it incumbent upon the legislature at 
the same time that they confer the power upon the governor to 
appoint to couple it with a condition which would absolutely insure 
an election by the people at a fixed date ? 

Mr. Evins. I am, of course, ignorant as to the motives which 
animated—I am speaking of the language- 

Senator Reed. Speaking about what is in the language. 

Mr. Evins. There is a large discretion left, in my judgment, by 
the express terms of the amendment, to the legislature as to when 
and how the contemplated election shall be held. 

Senator Reed. I think that is true. 

Mr. Evins. I take it that in providing for the election of Senators 
by the people that it was the design of the adopters of that amend¬ 
ment to brmg it into operation as soon as the existence of the Senate 
as a body and the preservation of the existing rights would permit. 
That is my judgment of it. So far as that is applicable to the present 
case, that is an academic question, because the Legislature of Ala¬ 
bama meets in regular session about the 1st day of January, 1915, 
and the term of Senator Johnston expires, I believe, on the 3d of 
March of that year. 

Senator Pomerene. Do you agree with Senator Robinson that no 
part of the seventeenth amendment shall apply to the filling of vacan¬ 
cies until after the expiration of the terms of office of afl Senators 
now holding ? 



42 


THE SENATOR FROM ALABAMA. 


Mr. Eyins. I can answer that question by stating very briefly 
what I do think about that. I believe there are two things to be 
considered when you consider a United States Senator. The State 
has a right and an obligation in the term. In the debates attending 
the adoption of the Constitution you will no doubt recall that the 
question as to the tenure of office—the length of tenure—was a vexed 
and much-debated question, six years being finally settled on, the 
design being to have a body who were not so directly responsible to 
the popular will as was the other branch; the idea being that the 
House, coming directly from the people, would present one view, or 
perhaps a radical view; the Senate, with its longer term of office, 
would present a countervailing check. So it was agreed in these 
Articles of Confederation that the contracting parties should send to 
the upper branch of the Congress in which they were to assemble by 
their representatives men who were to serve for six years. Now, the 
term—the six years for which the Senator was to serve—was a right 
or an obligation inherent in the State, as such, and arising out of the 
Federal Constitution. The election of a Senator by the State legis- 
lnture was the act by which an individual was selected to occupy for 
the State that position of personal trust for the period indicated in the 
Constitution. So, it seems to me that of necessity, being created by 
a separate body, that the term of a- Senator and the election of a Sen¬ 
ator are as totally distinct as can be. A Senator derives his personal 
right to sit in the Senate of the United States for six years, or for such 
period of that time as he might be competent to sit, from the act of 
the State legislature, and it alone. The State legislature was under 
the obligation to send a man there, and not elect another man until 
six years should elapse by virtue of the contract, of which the Con¬ 
stitution is the evidence. 

So it seems to me, the view that I have taken, as to the real intent 
and purpose of this amendment is that the concluding paragraph was 
designed to protect not only the Senator in the enjoyment of his office, 
but to preserve the existing system until it should live out its allotted 
span of life in order that the transition from the old system to the new 
might be accompanied without jar, without interruption of the public 
business, and without imposing new burdens on the States. 

Senator Pomerene. Then, I take it from what you have said, that 
if your governor should issue a writ for an election by popular vote of a 
United States Senator in your State—assuming, of course, that you 
had the necessary machinery for conducting an election, and at the 
same time your legislature should convene, and they should also elect 
a United States Senator to fill the vacancy created by the death of 
Senator Johnston, and credentials or commissions of each of these 
Senators were presented—that under the law and the Constitution 
the United States Senate would have to seat the man elected by the 
legislature or refuse to seat the one elected by the people ? 

Mr. Evins. That is undoubtedly my opinion, so far as it is of any 
value; but I will beg the members of the committee to bear in mind 
that that is not the proposition that I have primarily placed. I do 
not want to displace the ideas that I have urged by whatever my hum¬ 
ble opinion may be as to other cases. 

Senator Lea. Was there ever a law passed by the State of Alabama 
relative to the power of the executive to appoint United States Sena¬ 
tors in event of vacancy? The reason I ask that was because in the 


THE SENATOR FROM ALABAMA. 


43 


cases of Morgan and Pettus there was some action in regard to their 
successors- 

Mr. Evins. That was a party law. There was never any act of 
the legislature that I have any knowledge of, but that particular 
thing that you have reference to I do know was by resolution of the 
Democratic convention. 

Senator Walsh. Is there any State statute which practically 
repeats the Constitution of the United States giving the governor 
the power to appoint United States Senators ? 

Mr. Evins. No, sir. 

I thank you, gentlemen. Are there any other questions ? 

The Chairman. Are there any further questions desired to be asked ? 

Senator Bankhead. Mr. Chairman, I believe that for the present, 
so far as I know, concludes the hearing. We may ask the committee 
in a day or two to assemble again for the purpose of hearing another 
argument or two. I am not sure we will. In the meantime I want 
to file with the committee as a part of the record in this case the 
briefs that have been printed as public documents. 

The Chairman. They have been printed ? 

Senator Bankhead. They have been printed as Senate documents 
Nos. 165 and 170, and I want to file them and make them as part of 
the record. 

The Chairman. The arguments that have been made here have 
been taken down in shorthand. 

Senator Bankhead. I am not talking about that. I am talking 
about the briefs that we have had printed as public documents. 

The Chairman. That is all right. 

Senator Bankhead. For instance, there is Hannis Taylor's brief, 
and there is the Attorney General's brief, and the brief of the chief 
justice of the court of appeals; and we want them made a part of the 
record. 

Senator Reed. So far as I am concerned, I would be very glad if 
Judge Robinson's brief and the brief of Mr. Evins- 

Senator Bankhead. Mr. Evins, I do not think has any written 
argument, but he will be very glad to prepare a brief based thereon 
and furnish it. 

Mr. Evins. I will be very glad to comply with the Senator's 
request. 

Senator Reed. I would like very much to have that. They are 
better than the argument, however illuminating that may be. 

(All the briefs referred to are as follows:) 

BRIEF FILED BY SENATOR ROBINSON. 

IS MR. CLAYTON ENTITLED TO A SEAT IN THE SENATE? 

There is no dispute as to the material facts in this case. The late 
Senator Johnston was “chosen" a United States Senator by the 
Legislature of Alabama for the term beginning March 4, 1909, and 
ending March 3, 1915, pursuant to Article I, section 3, of the Federal 
Constitution. The seventeenth amendment, providing for the elec¬ 
tion of United States Senators by the people of their respective 
States, became valid by ratification of the requisite number of State 
legislatures, as appears from the proclamation of Secretary of State 



44 


THE SENATOR FROM ALABAMA. 


Bryan, May 31, 1913. Subsequently, August 8, 1913, Senator John¬ 
ston died and Mr. Clayton was temporarily appointed by the gov¬ 
ernor of Alabama to fill the vacancy until the meeting of the Legis¬ 
lature of Alabama. That body has not been in session since the 
amendment was ratified and has therefore taken no action authoriz¬ 
ing the governor to make a temporary appointment or to provide the 
means, manner, time, and places of holding an election to fill the 
unexpired term of Senator Johnston. 

Did the governor of Alabama, under these admitted facts, have 
authority to appoint a successor to the late Senator Johnston? 

The Senate being the sole judge is called upon to determine this 
question, and it becomes necessary to construe the seventeenth 
amendment. 

While the question is new, it is one that may have been reasonably 
anticipated. Its solution does not call for the application of unfa¬ 
miliar rules of constitutional construction. Many recognized legal 
authorities, analagous but not exactly in point, may be invoked in 
its determination. 

The seventeenth amendment, while designed to change the manner 
of choosing United States Senators, is not revolutionary and is not 
therefore intended to deprive any State of its right to equal repre¬ 
sentation in the Senate. It recognizes that there must be a transi¬ 
tion period, affording opportunity for the States to readjust their 
election laws and machinery so as to put the amendment into effect 
without a violent disturbance and without great expense and incon¬ 
venience. For these reasons the last clause was embraced in the 
amendment. While, of course, this clause must be considered in con¬ 
nection with the others, it is believed that this case is controlled by 
its language: “This amendment shall not be so construed as to affect 
the election or term of any Senator chosen before it becomes valid as 
part of the Constitution.” This language excepts and exempts from 
the amendment two things: The “election” and the “term” of any 
Senator chosen before the amendment became valid. It anticipated 
the conditions that inevitably followed the adoption of the amend¬ 
ment and sought to preserve, until reasonable opportunity was 
afforded the States to readjust their laws to the new method, their 
full representation, which was" a controlling consideration. It was 
impossible to anticipate, or even approximate, the date when the 
amendment would become effective, because that was contingent on 
the action of the various State legislatures and might not have 
occurred for many years. The amendment could only become valid 
upon its ratification by the required number of the States, through 
their legislatures. It is well settled that a resolution of ratification, 
once adopted by a State legislature, is final and can not be rescinded, 
and it is equally well settled that the failure or defeat of such a resolu¬ 
tion before one legislature does not bar or estop a subsequent legis¬ 
lature from adopting it. It is therefore clear that the time when 
the amendment would become effective could not be foretold, and 
therefore no fixed date could be provided. It was for this reason 
that the saving clause exempted terms and elections of Senators 
chosen before the adoption of the amendment instead of fixing a, 
date when it should go into effect. 


THE SENATOR FROM ALABAMA. 


45 


The exemption operates on the thing and not on the person. It 
is the election and the term that are exempted. The exemption of 
the “ election” of a Senator chosen before the amendment became 
valid prevents it from being retroactive; the exemption of the term 
provides a reasonable transition period in which to put the amend¬ 
ment into operation and at the same time preserve the equal repre¬ 
sentation of the State. 

THE CONTROVERSY DEFINED. 

All agree that clause 3 relieves Members chosen before the amend¬ 
ment was adopted from the necessity of again becoming candidates 
during their respective terms. Those who dispute Mr. Clayton’s right 
contend that this is the sole purpose of clause 3, and that Senator 
Johnston’s term expired when he died. 

Before advancing the affirmative grounds on which Mr. Clayton’s 
right to a seat is based let us analyze this position. If this be correct, 
why was the word “term” used ? The word “election ” would have 
been sufficient to preserve the right of Senators already chosen when 
the amendment was adopted, and the word “ term” is unnecessary. 
Moreover, apt expressions, free from ambiguity, could have been 
chosen. It is not presumed that inapt and unnecessary language 
was selected in framing constitutional provisions. Simple expressions 
were available to convey the meaning if it were to be narrowed so as 
to exempt the person instead of the term from the operation of the 
amendment. For instance, the words “tenure,” “seat,” and perhaps 
“service” are illustrations. There could have been no doubt as to 
the meaning of the language if it were written “this amendment 
shall not be so construed as to affect the tenure of any Senator chosen 
L before it becomes valid as part of the Constitution,” or “this amend- 
^ ment shall not be so construed as to affect the seat of any Senator,” 
etc. The word “seat” is used in this sense in the Constitution; 
but these words “seat,” “tenure,” “service,” and many others 
equally simple and familiar were discarded for other language which, 
to say the least, has given rise to this controversy, about which many 
lawyers differ. 

EFFECT MUST BE GIVEN TO ALL THE WORDS USED. 

It is not only true that the legal presumption exists that the 
framers of this provision chose apt language to express its meaning, 
and that the language actually used is not apt to express the mean¬ 
ing imputed to it by those who oppose seating Mr. Clayton, but it 
is also a recognized canon of construction that effect must be given 
to all the language—to every section, clause, and word. (Am. 
Eel. of Law, vol. 6, p. 926, citing District Township v. Dubuque, 7 
Iowa, 262; Nanly v. State, 7 Md., 135; and many other cases.) 
This principle is so well established that it seems unnecessary to 
argue it or discuss the many cases in which it finds support. As 
already stated, if the third clause in the amendment was intended 
to apply to the incumbent, inapt terms are used and no effect is 

7674—13-4 




46 


THE SENATOR FROM ALABAMA. 


given to the word “term.” Two primary rules of construction 
familiar to all lawyers are thus violated, and the framers of the 
seventeenth amendment are convicted of ignorance or carelessness 
in the performance of the grave duty of preparing a constitutional 
provision. The absurdity of this construction, however, does not 
end here. It overrides an even more universal rule, strictly appli¬ 
cable in determining the meaning of a constitutional provision. 

WORDS ARE PRESUMED TO HAVE BEEN EMPLOYED IN THEIR PLAIN, 
NATURAL, AND ORDINARY MEANING. 

Nothing is better established than the presumption, in inter¬ 
preting constitutions, that words have been used in their plain, 
natural, and ordinary meaning. The courts have repeatedly 
announced this rule, and it is so familiar that perhaps an apology is 
due for citing authorities to sustain it. 

A constitution is an instrument of government, made and adopted by the people for 
practical purposes, connected with the common business and wants of human life. 
For this reason, preeminently, every word in it should be expounded in its plain, 
obvious, and common sense. (Story on Constitution, sec. 451; People v. N. Y. Cen. 
R. Co., 24 N. Y., 486.) 

Words must be taken in their ordinary and common acceptation, because they are 
presumed to have been so understood by the framers and by the people who adopted 
it; * * * they judged of it by the meaning apparent on its face, according to the 
general use of the words employed, etc. (Miller v. Dunn, 72 Cal., 465; State v. Mace, 
5 Md., 348; Carpenter v. People, 8 Colo., 116; Springfield v. Edwards, 84 Ill., 643; 
Cantwell v. Owen, 14 Md., 215.) 

What is the plain, natural, and ordinary meaning of the words 
“affect” and “term,” used in clause three of the amendment? The 
language is: 

This amendment shall not be so construed as to affect the term of any Senator chosen 
before it becomes valid as part of the Constitution. 


THE WORD “AFFECT” DEFINED. 

The ordinary meaning of the word “affect” is “to act upon” or 
“to concern.” (Home Building and Loan Ass. v. Nolan, 53 Pa., 
738, 740; Caniff v. City of New York, 4 E. D. Smith, 430, 439; Clark 
v. Riddle, 70 N. W., 211; Holland v. Dickerson, 41 Iowa, 373; 
Richardson v. Woodward, 104 Fed., 874.) 

So, in construing the clause under consideration, we may substi¬ 
tute for the word “affect” the words which mean the same thing 
and which define it, so that the clause will read: “This amendment 
shall not concern the term of any Senator chosen before it became 
valid as part of the Constitution,” or “this amendment shall not 
act on the term of any Senator chosen,” etc. 

WHAT IS THE PLAIN AND ORDINARY MEANING OF THE WORD “TERM” ? 

The word “term,” when used in connection with an office—as, 
for instance, “term of a Senator,” “term of a Representative”— 
means a fixed and definite period. It is almost universally so con¬ 
strued. 


THE SENATOR FROM ALABAMA. 47 

GOY. O’NEAL APPOINTED MR. CLAYTON AFTER ADVISING WITH MANY 
EMINENT LAWYERS. 

In this connection it may be said that the governor of Alabama 
in appointing Mr. Clayton acted only after careful deliberation and 
followed the advice of many eminent lawyers, including the attor¬ 
ney general of Alabama and several Members of the United States 
Senate and of the House of Representatives. He did not act with 
recklessness or premature haste, but only after reaching the con¬ 
clusion that it was his duty to make an appointment. He is still 
of the conviction that no otner course was open to him, and declined 
to either call a special election or an extraordinary session of the 
legislature. There is, therefore, no escaping the issue in this case, 
which involves the correct construction and application of the 
seventeenth amendment. 

Some of the opinions with which the position of Gov. O’Neal is 
fortified have already been printed as a public document and are 
available for the use of Senators. 

The Hon. Hannis Taylor, among the most eminent living authori¬ 
ties on constitutional law, strongly supports Mr. Clayton’s right to 
be seated. 

In a very clear and forceful article Mr. Taylor reviews the pro¬ 
ceedings of the Federal convention of 1787, indirectly bearing upon 
this controversy, and shows that in all the discussions the necessity 
for fixing a senatorial term was prominent in the deliberations of the 
framers of the Constitution. The final result represented a com¬ 
promise which was carried into the Constitution. The theory that 
representation in the Senate should be based on population was 
discarded and all of the States given equal representation in the 
Senate without regard to their area or population. It was thus de¬ 
termined that among the fundamental principles upon which the 
Senate was created are that every State shall have two Senators, 
who shall serve for a term of six years. The seventeenth amend¬ 
ment retains both of these principles. There is neither an express 
nor implied attempt to alter either of them or to deny to any State 
its right to equal representation with the other States in the Senate. 
The policy of these principles is important. It prevents the con¬ 
centration of political power in the great centers of population and 
preserves to the smaller States their dignity and power as factors in 
the Federal Government. The seventeenth amendment changes 
the method of electing Senators, but Senators are still, in an impor¬ 
tant sense, representatives of their respective States. The principle 
of maintaining the equal representation of the States grows rather 
than diminishes in importance with the ever-increasing complexity 
of national political problems. The reason for the seventeenth 
amendment and the causes for its ratification are found in the fact 
that the system of electing by legislatures has been discredited by 
deadlocks and the frequent practice of frauds and corruption. The 
senatorial term of six years will be continued under the election of 
Senators by popular vote, as in the case of Members of the House of 
Representatives. 

The “term” is rarely synonymous with the incumbent. The term 
of a Senator is a definite period of six years. While the word “term” 


48 


THE SENATOR FROM ALABAMA. 


is not used in the provision of the Constitution creating the Senate, 
it is established by the words: 

The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof for six years. * * * 

There can be no doubt that the term of a Senator means the fixed 
period for which he is chosen. There would be no such thing as an 
unexpired term if it were not for the classification into three classes 
of Senators: 

The seats of the Senators of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the fourth^year, and of the third 
class shall be vacated at the expiration of the sixth year, so that one-third may be 
chosen every two years. 

If it were not for the necessity of preserving this classification, 
every Senator when once chosen would serve six years (except in case 
of his death or resignation). Even in case of the death or resignation 
of the Senator, his successor would serve for six years if it were not 
for the necessity of preserving the classification, so that one-third 
may be chosen every second year. 

The plain and ordinary meaning of the word “term” in this con¬ 
nection is a definite period, prescribed by the Constitution and does 
not expire with the death or resignation of a Senator. The words 
“term of office” mean the tenure and continuation of the office. 
They do not mean the incumbent of the office. (Words and Phrases, 
vol. 8, p. 6920; Bosworth, Auditor, v. Ellison, 148 Ky. Rpts. St. of 
Ap. P., 708; Storke v. Goux, 129 Cal., 526; Larew v. Newman, 81 
Cal., 588; Jameson v. Hudson, 82 Va., 281; Crovatt v. Mason, 28 
S. E., 894; Peters v. Board of Canvassers, 17 Kans., 365; Smith v. 
Holt, 24 Kans., 772; Field v. Malster, 88 Md., 691; Sommers v. 
Stake, 5 S. Dak., 321; People v. La Fevere, 21 Colo., 218; State v. 
Bridenthal, 55 Kans., 308; State v. Tallman, 24 Wash., 426; 
People v. Brundage, 78 N. Y., 403; Ellis v. Lennon, 86 Mich., 473; 
People v. Lemon, 44 S. W., 308; State, etc., v. Smith, 87 Mo., 158; 
State v. Hays, 38 Pac., 134.) 

These cases all treat the term of an officer as the period for which 
he is chosen to serve and as independent of the length of time during 
which he may in fact serve. 

In Bosworth v. Ellison, supra, the court said: 

Ellison was appointed to fill out a part of Morgan’s unexpired term. He had no 
term of office apart from the term of Morgan. He was merely occupying the place 
that Morgan under his election would have filled except for his resignation. A term 
of office when the period of the term is fixed by Constib tion or statute means the 
period designated by the Constitution or statute. There shot Id be certainty and a 
fixedness about the words “his term of office.” They were not intended to depend 
on the mere accident of appointment or election to fill a vacancy for a month or a year. 
When a person is appointed or elected to fill a vacancy in a term, he merely fills out 
the term of his predecessor. He does not enter on a new term of office, as does a per¬ 
son who is elected or appointed and takes the office at the beginning of the term as 
fixed by law. Within the meaning of section 161 of the Constitution, Ellison occupies 
precisely the same position that Morgan would if he had not resigned. 

It will be seen that this case is as nearly in point as any case can 
be, for there can be no exact precedent under a constitutional pro¬ 
vision which is entirely new. It merely gives effect to the ordinary 
meaning of the word “term” when used in this connection. It is 
thus made clear from the overwhelming weight of authority that 
the term of a Senator does not end with his death or resignation. It 


THE SENATOR FROM ALABAMA. 


49 


continues uninterruptedly to the end of the six years. There may 
be any number of Senators in a single term. Senator Davis, of 
Arkansas, died January 2, 1913, a few days prior to the meeting of 
the legislature. His term would have expired March 4, 1913. Pend¬ 
ing the meeting and action of the legislature, the then governor of 
Arkansas appointed Mr. J. N. Heiskell. The legislature selected 
Mr. W. M. Kavanaugh to fhl out Senator Davis's unexpired term. 
Many similar instances could be cited. In law and in parlance the 
term is designated after the Senator first chosen. In this case we 
speak of Senator Johnson's term as his “unexpired" term. 

In view of these authorities can there be any question as to the 
usual meaning of the word “term" ? No well-considered case estab¬ 
lishes the contrary doctrine. 

If the language be given its ordinary meaning, the conclusion is 
inevitable that Mr. Clayton is entitled to his seat, because the term 
of Senator Johnson is not concerned or affected by the new amend¬ 
ment and is governed solely by the old provision. 

IS THE WORD “term" USED IN ITS ORDINARY SENSE? 

It has been suggested that the word “term" is modified by the 
word “chosen" or by the words “of a Senator chosen." These 
words make plain what term is exempted. It is not every term 
that is exempted from the operation of the amendment and governed 
by the old amendment, but only those terms in which the Senators 
are chosen before the amendment became valid. All others are 
governed by the new amendment. 

While the words “choose" and “appoint" are sometimes synony¬ 
mous, the word “choose" is a broader term and frequently means 
to elect. The Constitution distinguishes between these terms and 
uses the words temporary appointment in a different sense from the 
word choose. Under Article I, section 3, of the Constitution Sena¬ 
tors are chosen by the legislatures, “and if vacancies happen by 
resignation or otherwise during the recess of the legislature of any 
State the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancy." 

A Senator is not “chosen" when he is temporarily appointed. 
Heretofore a Senator could only be chosen by the legislature. He 
could only be temporarily appointed by the governor. The governor 
could not choose a Senator. The legislature could not appoint one. 
The seventeenth amendment transfers the power to choose a Senator 
from the legislature to the people. In the Constitution the word 
chosen means elected by the legislature. 

In Conger v. Gilmer (32 Cal., 75, 78) the corrt said the words “appointment” and 
“election” represent different tenures. 

The people elect; the governor or other functionary appoints * * * where the 
officer is chosen by the people he takes by virt e of his election. Where the office 
from any ca^se becomes vacant before the expiration of the term, and it is filled by 
the choice of the governor or some other p .blic f mctionary, the officer takes by virtue 
of his appointment. 

Again: “In the popular sense an election is a choice which several persons col¬ 
lectively make of a person to fill an office or position, while an “appointment” is a 
choice for such office or position by some single officer or person. Where a police 
judge was selected by the several members of the city council it is not inappropriate 
to say that he was elected.” (State v. Williams, 60th Kans., 837.) 


50 


THE SENATOR FROM ALABAMA. 


In People v. McKinney (52 N. Y., 374) this distinction is made quite clear, as also 
in People v. Bull (46 N. Y., 57). In the latter case it was held that an act of the legis¬ 
lature extending the term of the incumbent of the office of justice of a district court 
in the city of New York, which he held by election at the time the act was passed, was 
in conflict with a section in the constitution of that State providing that all city, town, 
and village officers whose election or appointment is not provided for by this con¬ 
stitution shall be elected by the electors of such cities, etc., or appointed by such 
authorities thereof as the legislature shall designate for that purpose. 

It was held to be in substance an appointment by the legislature * * * and 
that it could not be done under the power to fix the duration of the term. 

When is a person chosen to an office ? When is a Senator chosen ? 
This exact question has been answered in State v. Hunt (54 N. H., 
431, 432). 

A person is chosen to an office within the statute providing for the filling of vacancies, 
although he dies after the votes are cast, though before they are counted. 

In the case of the Senator from Georgia, Mr. Bacon, while he was 
temporarily appointed by the governor of Georgia before the new 
amendment became valid, his term is governed by the new amend¬ 
ment, because he was not chosen; that is, elected, until after the 
amendment had become effective. 

ONLY THE USUAL MEANING CAN BE GIVEN THE WORD “ TERM.” 

If you discard the plain meaning of the word “term,” as used in the 
amendment, what meaning will you give it? It has already been 
shown that in order to do this, you must violate the fundamental 
rules of construction and deprive the State of Alabama of its equal 
representation in the Senate. What meaning will you give the word 
“term” in this case if you say it does not mean the six-year period 
for which Senator Johnston was chosen? Will you override every 
legal authority and precedent and declare that it means the natural 
life of Senator Johnston ? Will you say that the term of a Senator 
chosen before the amendment became valid shall not be affected by 
the amendment provided he lives and serves until the end of his term 
or does not resign, but shall be affected by it if he dies or resigns 
before the end of his term ? In order to give this meaning, you must 
not only violate every rule of construction heretofore referred to, but 
you must also write into the amendment words that are not used; 
words that contradict the meaning of the language actually used. 
Wliat justification is offered for such open violation of the fixed laws 
which govern the construction of constitutions ? 

If you say that to construe the words in their natural sense will 
postpone the operation of the new amendment in some cases, I answer 
that according to every construction that is true of the cases of all 
Senators sitting when the amendment became valid. 

Your construction postpones the operation of the amendment so 
that it will not affect the case of any Senator who serves to the end 
of his term, while the construction here urged only postpones in 
addition those terms where the Senators may die or resign before 
the end of their term. The history of the Senate shows that probably 
only five or six Senators will die or resign before the amendment 
becomes effective as to all Senators, under my construction. In view 
of this fact, are you willing to say that the exemption was solely for 
the personal convenience of individuals and in disregard of the 
convenience of the public ? In 42 of the States the legislatures meet 


THE SENATOR FROM ALABAMA. 


51 


in odd years, the remainder in even years. That is in 42 of the 
States the legislature will not again be in session until after 1914. 
At least 3 of them meet only once in four years, so that in case of a 
vacancy in any State, with perhaps two or three exceptions, your 
construction will require extra sessions of the legislatures to authorize 
the governor to do the identical thing which, under the old Constitu¬ 
tion, can be done in this case by virtue of the saving clause in the 
new amendment, without an extra session of the Alabama Legislature, 
which will not again meet in regular session until 1915. The con¬ 
struction here urged provides a reasonable transition period in which 
most of the legislatures will probably meet in regular session, and in 
an orderly way change their laws so as to put into effect the amend¬ 
ment and provide for the election of Senators by the people. This 
construction conforms to the fixed rules applicable to constitutional 
provisions, conserves the convenience of individual Senators, and 
also that of the general public by substituting the new amendment 
for the old provisions in such a manner as to avoid the inconvenience 
and expense incident to extra sessions of the legislatures. 

Many eminent lawyers and law writers believe that a United States 
Senator is a “ State officer,” and that therefore the governor is author¬ 
ized to appoint by the Alabama statute giving him power to fill all 
vacancies in State offices. The Supreme Court of the United States 
in Burton’s case (202 U. S., at p. 369) expressly holds that a United 
States Senator is not an “ officer under the Government of the United 
States.” The court points out the fact that while Senators partici¬ 
pate in passing laws that concern the entire country, its Members are 
chosen by State legislatures and can not properly be said to hold 
their places 11 under the Government of the United States.” While 
this suggestion is worthy of consideration, I believe that it is not 
necessary, in determining this case, to hold that a United States 
Senator is a 11 State officer.” It is sufficient to demonstrate that Mr. 
Clayton has no term separate from that of his predecessor, Mr. John¬ 
ston, who was chosen—that is, elected by the Alabama Legislature— 
before the seventeenth amendment went into effect; and that Sen¬ 
ator Clayton, if seated, will be serving the unexpired term of Senator 
Johnston. That term is not affected by the new amendment, and 
Mr. Clayton was therefore appointed under the old provisions of the 
Constitution. Admittedly the new amendment is not self-executing, 
and even if it did not expressly exempt the term the authorities hold: 

Where legislation is necessary to give effect to a constitutional provision laws in 
existence at the time of its adoption remain effective until legislation is had to en¬ 
force such provision. (American Enc. of Law, vol. 6, p. 920; Dodridge County v. 
Stout, 9 W. Va., 703; Chahoon v. Com., 20 Gratton (Va.), 733.) 

This principle of course can only be given a reasonable and prac¬ 
ticable application. It could not be invoked to support an unreason¬ 
able delay in enforcing the new amendment, but it is worthy of men¬ 
tion in this connection, as illustrating the policy that prevails in 
adopting new constitutional provisions. 

On the whole case Mr. Clayton is entitled to a seat in the Senate, 
else Alabama will be deprived, until the meeting and action of her 
State legislature, of her equal representation in the Senate. The 
exemption clause will be given but partial effect; great confusion 
and inconvenience will result to the public with no corresponding 
benefits. It is admitted that he would be seated if new authority to 


52 


THE SENATOR, FROM ALABAMA. 


appoint had been conferred on the governor of Alabama since the 
adoption of the amendment. That authority exists in the Federal 
Constitution, and in the existing laws of Alabama. It is the consti¬ 
tutional provision which governs this case, because it is within the 
exemption contained in the new amendment. 

BRIEF FILED BY HON. R. B. EVINS. 

IN RE RIGHT OF HON. H. D. CLAYTON TO A SEAT IN THE UNITED STATES 

SENATE UNDER THE APPOINTMENT OF THE GOVERNOR OF ALABAMA. 

The contention that Mr. Clayton enjoys a valid appointment to 
the United States Senate has mainly been based upon the premise 
that the operation of the seventeenth amendment was wholly pros¬ 
pective—that it did not affect the existing status of the Senate 
until the full period of time for which Senators chosen before it 
became valid as a part of the Constitution were elected had elapsed. 

That this is a correct view I very sincerely believe, and I further 
believe that it would be wise to settle the case on that issue, as any 
case hereafter arising would then present no unsettled question. 
There is a state of facts, however, peculiar to Mr. Clayton’s case, 
which justifies his appointment at all events, even assuming that the 
amendment applies to the vacancy created by the death of Senator 
Johnston. 

The amendment by its express terms authorizes the legislature to 
empower, in case of vacancy, the executive authority of the State 
to make temporary appointment to fill the vacancy until the next 
election by the people, as the legislature may direct. This power 
the legislature had already granted and the governor of Alabama 
is now empowered and directed by statute to appoint. The statute 
is as follows: 

[H. 55, No. 65.] 

AN ACT To provide for the filling of any vacant office of the State, or any county, or any municipality, 
when there is no provision of law for filling such vacancy. 

Be it enacted, by the Legislature of Alabama , That when any office of the State, of any 
county, or municipality thereof, is vacant from death, resignation, removal from the 
municipality, county, or State, or because the former incumbent absconds, or because 
an incumbent has been removed for ineligibility, or when the office is vacant from 
any other cause, and there is no way provided by latv for the filling of such vacant 
office, the governor is hereby empowered and required to appoint a qualified person 
to fill the unexpired term of such office. 

Approved August 25, 1909. 

(General and Local Acts, Alabama, special session 1909, p. 156.) 

Inasmuch as the act applies to a vacancy in “any office of the 
State,” its application here depends upon whether a Member of the 
United States Senate is a State officer. That he is such officer there 
can be no manner of doubt. That such is his character is clearly 
recognized in the Constitution. It is so stated by an approved text- 
writer, and so decided by the Supreme Court of the United States. 

Article I, section 1, of the Constitution is as follows: 

All legislative powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and House of Representatives. 

A “congress” has been defined to be— 

A formal assembly as of princes, deputies, representatives, envoys, or commissioners, 
especially a meeting of the representatives of several governments or societies to con¬ 
sider or determine matters of common interest. (Webster’s International Dictionary.) 


THE SENATOR FROM ALABAMA. 


53 


The legislative power, then, is granted to a meeting composed of 
the United States—i. e., the States which are united under the com¬ 
pact of which the Constitution is the evidence. The Congress is a 
Congress of States and not of men — 11 States not men are constituents 
of the Senate.” (Tucker on the Constitution, p. 319.) 

States, like other corporations, can act only by their agents. Con¬ 
sequently, as it is an impossibility for the States, as such, to meet 
together, they appear by and through their agents or officers, who are 
ealled Senators. Each Senator, therefore, represents, stands for, and 
is an agent for, and necessarily an officer of his principal, which is the 
State from and by which he is commissioned. The aggregate repre¬ 
sentation of any State in Congress, in legal theory and in the contem¬ 
plation of the Constitution, is that State. The individual constituents 
of that State representation can be none other than that State’s 
officers. 

Article I, section 6, of the Constitution guarantees the individual 
allegiance of these Representatives from the State to the State they 
represent by providing— 

And no person holding any office under the United States shall be a Member of 
either House during his continuance in office. 

Thus, the fact of being an officer of the United States disqualifies 
an individual, while he is such officer, from becoming a Senator. If 
by becoming a Senator he becomes an officer of the United States, 
he thereby becomes disqualified to hold it, the acceptance constitut¬ 
ing the disqualification. 

The plain conclusion is that he does not by becoming a Senator 
become an officer of the United States. Otherwise, the Senate could 
not exist, as a Senator must be an officer of either the United States 
or of the State he represents; and as he can not be a Senator and an 
officer of the United States at the same time, the conclusion is inevi¬ 
table that he is a State officer. 

Article 2, section 1 of the Constitution, defines the qualifications 
for electors. One of them is— 

But no Senator or Representative, or person holding an office of trust or profit under 
the United States, shall be appointed an elector. 

The office of Senator is certainly one of trust. In legal theory, 
it is at least, one of profit. If their office were held under the United 
States, Senators would have been included in the general class of 
those “holding an office of trust or profit under the United States,” 
and a separate exclusion of them as competent electors would have 
been unnecessary. They were disqualified in addition to officers of 
the United States, and are, therefore, clearly recognized as officers 
of the State. Commenting on this clause, Mr. Tucker in his work on 
the Constitution says: 

This clause is suggestive of what is just above stated, that neither a Senator nor a 
Representative is a person holding an office of trust or profit under the United States; 
such hold under the State represented by them, not under the United States. 
(Tucker on the Constitution, p. 696.) 

The question has been decided by the Supreme Court of the United 
States in Burton v. United States (202 U. S., 369). The court says: 

Allusion has been made to that part of the judgment declaring that the accused, by 
his conviction, “is rendered forever hereafter incapable of holding any office of honor, 
trust, or profit under the Government of the United States.” That judgment, it is 


54 


THE SENATOR FROM ALABAMA. 


argued, is inconsistent with the constitutional right of a Senator to hold his place for 
the full term for which he was elected, and operates of its own force to exclude a con¬ 
victed Senator from the Senate, although that body alone has the power to expel its 
Members. We answer, that the above words, in the concluding part of the judgment 
of conviction, do nothing more than declare or recite what, in the opinion of the trial 
court, is the legal effect attending or following a conviction under the statute. 
They might well have been omitted from the judgment. By its own force, without 
the aid of such words, in the judgment, the statute makes one convicted under it in¬ 
capable forever thereafter of holding any office of honor, trust, or profit, under the 
Government of the United States. But the final judgment of conviction did not op¬ 
erate, ipso facto, to vacate the seat of the. convicted Senator, nor compel the Senate 
to expel him or to regard him as expelled by a force alone of the judgment. The seat 
into which he was originally inducted as a Senator from Kansas could only become 
vacant by his death, or by expiration of his term of office, or by some direct action on 
the part of the Senate in the exercise of its constitutional powers. This must be so 
for the further reason that the declaration in section 1782, that any one convicted 
under its provisions shall be incapable of holding any office of honor, trust, or profit, 

£ ‘ under the Government of the United States,” refers only to officers created by or exist¬ 
ing under the direct authority of the National Government as organized under the 
Constitution, and not to offices the appointments to which are made by the States, act¬ 
ing separately, albeit proceeding in respect of such appointments, under the sanction 
of that instrument. While the Senate, as a branch of the legislation department, owes 
its existence to the Constitution, and participates in passing laws that concern the entire 
country, its Members are chosen by State legislatures, and can not properly be said to 
hold their places “under the Government of the United States.” 

As the Senator, as stated, must be an officer under the United States 
or under the State, this case, by holding that he is not an officer of the 
United States, holds, by necessary implication, that he is an officer 
of the State. 

From whom does a Senator receive his commission ? From the 
governor of the State, of course. To whom does he return it in case 
of resignation? Not to the Vice President, but to the governor of 
his State. Is the governor of any State authorized to issue commis¬ 
sions to officers of the United States ? Could he commission a captain 
in the Army, a lieutenant in the Navy, a circuit judge, or an envoy 
to a foreign power? Manifestly, his power is limited in the issuance 
of commissions to State officers, and such is the Senator he com¬ 
missions. 

A Senator being, therefore, a State officer, a vacancy was created 
in a State office by the death of Senator Johnston, and the same was 
properly filled under the power of the act quoted, which exercises a 
power consonant with the terms of the seventeenth amendment if 
it be now operative on Senator Johnston’s unexpired term. 

It was suggested that the act of August 25, 1909, might not apply, 
because at the time of this passage the seventeenth amendment was 
neither adopted nor proposed. This objection's wholly without merit. 
In the first place, by necessary presumption of law the legislature 
passing the act did contemplate a situation whereby its authority 
might be necessary to empower the governor to fill a vacancy in the 
Senate. A Senator being a State officer, that conclusive presumption 
of law which imputes the knowledge of the law to all persons fixes 
the fact beyond contest that the legislature recognized him as a State 
officer. If so, by including as they did all State officers in the general 
terms of the act, they included knowingly the office of Senator. 
There was no exception of this office from the terms of the act. 
“When any State office becomes vacant” is, in substance, the language 
of the act; and it must be given effect in the terms in which it is 
expressed. Extrinsic facts can not be looked to. 


THE SENATOB FEOM ALABAMA. 55 

As said by Chief Justice Marshall in Sturgis v. Crowninshield, 
4 Wheaton, 122: 

It may not be improper to premise that although the spirit of an instrument, expe- 
cially of a constitution, is to be respected not less than its letter, yet the spirit is to be 
collected chiefly from its words. It would be dangerous in the extreme to infer from 
extrinsic circumstances that a case for which the words of an instrument expressly 
provide shall be exempted from its operation. Where words conflict with each other, 
where the different clauses of an instrument bear upon each other, and would be incon¬ 
sistent unless the natural and common import of words be varied, construction becomes 
necessary, and a departure from the obvious meaning of words is justifiable. But if, 
in any case, the plain meaning of a provision, not contradicted by any other provision 
in the same instrument, is to be disregarded, because we believe the framers of that 
instrument could not intend what they say, it must be one in which the absurdity 
and injustice of applying the provision to the case would be so monstrous that all man¬ 
kind would without hesitation unite in rejecting the application. 

The plain, primary intent of the act was to provide that no unknown 
condition or contingency in the future should operate to deprive the 
people of Alabama of any public service for want of a legal authority 
to commission a servant. And it applied to all State offices. Is there 
anything absurd or unjust in an act which anticipates changed or new 
or unknown conditions and frames legislation to meet them when and 
if they arise ? Is there anything so monstrous in supposing that when 
the legislature provided for filling a vacancy in “any State office” 
that it meant “any State office” including that of Senator, that all 
mankind would reject that meaning as absurd or unjust? 

Legislation is intended not only to meet the wants of the present, but to provide for 
the future. It deals not with the past, but in theory, at least, anticipates the needs 
of a State. * * * It is intended to be permanent. (W 7 heeler v. Philadelphia, 77 
Pa. St., 349.) 

A statute affects all things coming within its terms whether existent 
at the time of its passage or coming into existence later. The general 
rule is well stated in 36 Cyclopedia, page 1235, as follows: 

Where a statute is expressed in general terms and in words of the present tense it will 
as a general rule be construed to apply not only to things and conditions existing at its 
passage, but will also be given a prospective interpretation by which it will apply to 
such as come into existence thereafter. 

This is necessarily so. Did the legislature of any State which has, 
for instance, the uniform negotiable instruments law, have any con¬ 
ception of just what particular pieces of commercial paper its provi¬ 
sions would be applied to ? And will not paper issued 50 years hence be 
subject to the provisions of that act if it remains unchanged in the 
statute ? Are not criminals daily tried and punished under the pro¬ 
visions of laws which were passed before they were born ? 

At the time this act was passed the Alabama court had held for 
years that statutes applied to conditions coming within their terms 
though nonexistent and improbable of existence at the time the act 
was passed. This construction of legislative power should be ac¬ 
corded the same controlling effect that is everywhere accorded to the 
construction of a State statute by their highest State court. 

In Griffin v. Drennen (145 Ala". 132) the act construed was one to 
fix the salaries of mayors in cities of 35,000 inhabitants or more. 
There were at the time but two or three cities in the State coming 
within that classification. Under the constitution of Alabama local 
laws are those not applying to the whole State and must be adver¬ 
tised, before introduction, in the territory affected. This act was 


56 


THE SENATOR FROM ALABAMA. 


not advertised and was attacked on that ground, the contention being 
that it was a local act. The court held the act to be a general law 
and valid, holding that though it presently applied to but three or 
four cities, it would apply to all cities as in the future they attained 
the requisite size. Hence it operated throughout the State, presently 
as to some places, prospectively as to all others, though it is most 
improbable there will ever be a time in Alabama when it has no city 
under 35,000 population. (See also Davis v. Branch Bk., 12 Ala. 
463; Covington v. Thompson, 142 Ala., 98.) 

In State v. Nelson (Ohio) (26 L. R. E., p. 319), discussing a some¬ 
what similar statute, the court said: 

As the statute affecting different cities and villages of different classes practically 
do not operate in every part of the State, but only where a city or village of the particu¬ 
lar class is found, it might seem that such laws do not operate uniformly throughout 
the State. A moment’s reflection will show that this is not so. If a new city or village 
of a particular class should be built up in the wildest spot in the State the statutes 
applicable to such class of city or village would be found to be in force there. 

If a statute becomes operative on a city afterwards built in “the 
wildest part of the State”; if a statute passed before a city was ever 
commenced applies to it, when after the passage of years it attains a 
population of 35,000, why will not a statute passed before the pro¬ 
posal of the amendment applying to any State office vacant without 
legal authority to fill it apply to the State office of Senator after the 
adoption of the amendment, particularly in view of the fact that 
the change from the old system to the new was one which reasonably 
informed men have for some time anticipated ? 

So, the Senator being a State officer, that office becoming vacant, 
there being no other legal authority to fill it, the statute conferring 
that power upon and requiring that duty of the governor, and being 
applicable to that office, is a conclusive warrant for the action of the 
governor of Alabama in appointing Mr. Clayton. It is suggested that 
the appointment is not valid under the statute, for the reason that by 
its terms the governor is empowered and required to fill the vacancy 
for the unexpired term, whereas the amendment allows the legisla¬ 
ture to empower the executive authority to make temporary appoint¬ 
ment until the next election by the people, as the legislature may 
direct. 

There are several sufficient answers to this propositions: 

1. There is not yet any conflict between the provisions of the act 
quoted and the power authorized by the amendment to be exercised 
by the legislature. If the legislature provides for an election and 
fixes its date before the close of the unexpired term, there would be 
a conflict; otherwise not. There is certainly no conflict now, and 
the act under which the governor acted in appointing Mr. Clayton 
is certainly not now in conflict with the amendment or any exercise 
of the power therein granted to the legislature. In such case the 
law is plain. It is fundamental that when by the Constitution the 
Federal Government possesses the right to legislate and does not 
exercise the power. State laws on the same subject are valid. In 
Escanaba Co. v. Chicago (107 U. S., 685) the first headnote correctly 
summarizes the holding of the court and exhibits the doctrine above 
alluded to. It is as follows: 

The Chicago River and its branches, although lying within the limits of the State 
of Illinois, are navigable waters of the United States, over which the Congress, in the 
exercise of its power under the commerce clause of the Constitution, may exercise 


THE SENATOR FROM ALABAMA. 


57 


control to the extent necessary to protect, preserve, and improve their free naviga¬ 
tion; but until that body acts the State has plenary authority over bridges across 
them, and may vest in Chicago jurisdiction over the construction, repair, and use of 
those bridges within the city. 

So here, the time at which elections may be held to fill vacancies 
in the senatorial office being by the amendment vested in the legis¬ 
lature, it may pass binding laws on that subject and defeat an earlier 
appointment for a longer period, “but until that body acts, the 
State has plenary authority.” That body not having acted, thero 
is nothing in existence to conflict with the action already taken 
whereby the governor was authorized to appoint for the unexpired 
term. 

2. If there is any conflict between the act of August 25, 1909,, 
and the amendment, the conflict can not be on the right of the gov¬ 
ernor to appoint, but only on the length of time for which such 
appointment might be made. In such case the appointment under 
the act of August 25, 1909, would be valid up to the time fixed for 
the election. This follows from the doctrine that repeals by impli¬ 
cation are not favored, and when such exists it is by reason of a 
repugnancy between the terms of an earlier and later act, and in 
case such repugnancy exists the repeal will be to the extent of such 
repugnancy alone. 

In Lewis's Sutherland Statutory Construction, page 464, it is said: 

The intention to repeal, however, will not be presumed, nor the effect of repeal 
admitted, unless the inconsistency is unavoidable, and only to the extent of the 
repugnancy. 

Many authorities are cited to the text, but the rule is fundamental 
and needs no support. 

In the oral argument which it was my privilege to make before the 
committee some surprise was intimated at the use by me of the 
technical word “repeal,” to express the influence of the amendment 
on an existing State statute with which it was supposed to be in con¬ 
flict. I think the word was properly chosen. A repeal by implica¬ 
tion is, as stated, the abrogation by a superior statute of another, 
when an irreconcilable conflict exists between the two. If there is 
any conflict between the act of August 25, 1909, and the subsequently 
adopted amendment, there would be an abrogation of the act so far 
as the conflict existed between it and the amendment, and thus a 
repeal to the extent of the conflict. The Constitution and laws of the 
United States are as much a part of the law of the State of Alabama 
as its own local laws and constitution. (Houenstein v. Lyndham, 
100 U. S., 490.) That the conflict of a later Alabama statute or 
constitutional provision with a previously existing statute would con¬ 
stitute a repeal to the extent of a conflict is, I believe, admitted. 

3. The Constitution and statutes of the United States, being a 
part of the law of Alabama, why would there be any difference be¬ 
tween their effect, or the name of that effect, on an existing statute, 
and that of the local law or Constitution? 

That a statute may be bad in part and valid as to the remainder 
is elementary. In Federal case 18273 (30 Fed. cases, 1039) the 
following is announced with reference to a State statute: 

So far as it conflicts with the Constitution, or with any valid law of the United States,, 
it is utterly nugatory. 


58 


THE SENATOR FROM ALABAMA. 


It is nugatory, it will be observed, not in toto, but “so far as it 
conflicts.” 

The following authorities are conclusive as to the validity of the act 
of August 25, 1909, so far as the appointment is concerned, even if it 
be held that the term for which the legislature therein authorized 
the appointment to be made was for a longer period than the Con¬ 
stitution, or a hereafter passed statute of Alabama, may require. 

Where the constitution forbade an appropriation for a longer 
term than two years, a statute making an appropriation for a longer 
term was held good for two years. (Pickle v. Finley, 91 Tex., 484.) 

A statute authorizing municipalities to become indebted beyond 
the constitutional limit was held effectual to authorize the creation of 
a debt not exceeding the limit fixed by the constitution. (Dunn v. 
Great Falls, 13 Mont., 58; Germania Savings Bank v. Darlington, 50 
S. C., 357.) 

The constitution of Nebraska authorized the commitment to the 
reform school of children under 16 years of age. A statute authorized 
the commitment of children under 18. It was held valid as to those 
within the constitutional limit. The court said: 

The legislature has clearly here expressed its will, but it has gone too far; it has trans¬ 
cended the limits of its authority. It has, in an unmistakable manner, signified its 
purpose not only to authorize the commitment to the reform school of certain children 
under 16 years of age, but also children beyond that age, who, although guiltless of 
crime, have evinced a criminal tendency and are without proper parental restraint. 
The legislature having declared its will, and its command to the courts being in part 
valid and in part void, the decisive question is, Shall section 5 be given effect so far as 
it is in accord and agreement with the paramount law? It seems that both good sense 
and judicial authority require that the question should receive an affirmative answer. 
(Scott v. Flowers, 61 Nebr., 620, 624.) 

So also, in Sinking Fund Commissioners v. George (104 Ky., 260), 
the act construed created a board of penitentiary commissioners and 
provided that, of the first board, one should hold for two years, one 
for four years, and one for six years, and that thei r successors should 
be elected for six years. The constitution forbade the creation of 
officers with a longer term than four years. The act was held to create 
a four-year term and to be valid as so modified. The court said: 

The language employed shows that the general assembly was willing that one of the 
commissioners should hold his office for six years—two years longer than the constitu¬ 
tion will permit. As the general assembly expressed a willingness that one of the com¬ 
missioners should hold for two years longer than the constitution permits, it is cer¬ 
tainly reasonable to conclude that it was the will of that body that the commissioners 
should hold for four years, as this term is necessarily included in the longer one which 
is fixed. To hold the act void in so far as it makes the term six years instead of four, still 
the balance of the act is complete and enforceable. The purpose and intent of the 
general assembly that the commissioners should manage and control the penitentiaries 
can be effectuated by eliminating from the act that part which attempted to make 
terms six instead of four years. 

It seems very clear, therefore: 

1. That before any conflict can exist between the act and the 
amendment or anything authorized by it, that the power therein 
given by it to the Legislature of Alabama with reference to elections 
to fill vacancies, must be exercised in a manner incompatible with 
the act. It is not yet exercised, and there can be no conflict. 

2. That if a conflict could be said to now exist between the act 
as it stands and the amendment, or the act the amendment contem- 


THE SENATOR FROM ALABAMA. 


59 


plated, it could only exist with reference to the time for which the 
appointment should exist. It could not conflict with or affect the 
right to appoint. 

The act of August 25, 1909, provided (1) the power of appointment 
and (2) the term of appointment. If there is excess of power as to 
the time to be served under the appointment, there is none as to the 
right of appointment. The right of appointment being clear, at all 
events Mr. Clayton’s right to a seat in the Senate seems established. 

In conclusion, I direct attention to the fact that to deny Mr. Clayton 
a seat in the Senate under the governor’s appointment would give 
the seventeenth amendment a construction that would bring it into 
direct conflict with the concluding clause of Article V of the Consti¬ 
tution. That section is: 

And that no State, without its consent, shall be deprived of its equal suffrage in the 
Senate. 

This clause guarantees the permanent and temporary equality of 
the States in the Senate. A deprivation of equality in that body 
for 10 minutes would be as contrary to the provisions of this article 
as if it were permanent. 

No one would contend for an instant that an amendment to the 
Constitution ratified by every State in the Union except Alabama, 
providing that that State should be denied equality of suffrage in the 
Senate for a day or a week would have any validity or effect. Nor 
can any other amendment be so construed as to effectuate that result. 
Otherwise that would be accomplished by indirection which is for¬ 
bidden to be done directly. 

Alabama has never ratified the seventeenth amendment. If it is 
so construed, that for a temporary period, that State is denied its 
equality in the Senate, that valuable right supposed to be secured by 
Article V is lost. It win not do to say that Alabama could, by calling 
its legislature together, provide itself with representation. That 
course takes time, and while it is in process of completion the State 
by the construction accorded to the seventeenth amendment would 
not have its full representation in the Senate. Is that not a tem¬ 
porary denial of its equality of suffrage in the Senate ? And can the 
seventeenth amendment abrogate Article V ? Alabama has not rati¬ 
fied the seventeenth amendment, and so has not consented to the 
resulting burdens which might accompany its adoption in providing 
itself with representation. 

The State’s right to equality in the Senate is absolute; is not con¬ 
ditioned upon an extra session of its legislature at great expense. 
To require it to assume any burden to retain its representation in the 
Senate is to burden an absolute right with a condition, a situation 
which is not compatible with the right reserved. 

R. B. Evins, 

Legal Adviser to the Governor of Alabama. 


60 THE SENATOR FROM ALABAMA. 

SENATE DOCUMENT NO. 165, SIXTY-THIRD CONGRESS, FIRST 

SESSION. 

Opinions Relative to the Seating of Hon. Henry D. Clayton 
as a Senator From the State of Alabama. 

State of Alabama, Executive Department, 

Montgomery, August 14, 1913. 

Hon. Henry D. Clayton, 

Washington, D. C. 

My Dear Clayton: I inclose you an official copy of the opinion of 
the attorney general in which he advises me that a vacancy caused 
by the death of a Senator the power and duty imposed upon me by 
section 3, article 1, of the Constitution of the United States remains 
unaffected by the adoption of the seventeenth amendment for the 
reason that this amendment, by its expressed terms, postpones its 
operation in the case of a vacancy occurring as this one did until the 
expiration of the term, which Senator Johnston was holding at the 
time of the adoption of the seventeenth amendment. This opinion 
I had requested before making your appointment and failed to give 
you a copy before you left the city. I fully concur in the conclusion 
reached by the attorney general. 

Yours, very sincerely, Emmet O’Neal. 

State of Alabama, Executive Department, 

Montgomery, August 12, 1913. 

Hon. Emmet O’Neal, 

Governor, Capitol. 

Dear Sir: Your letter requesting me to advise you as to the course 
you should pursue in reference to the vacancy in the Senate of the 
United States of America caused by the death of Hon. Joseph F. 
Johnston, one of the Senators from this State, received. 

In determining this question it is necessary to consider and con¬ 
strue the seventeenth amendment of the Constitution of the United 
States, which is as follows: 

The Senate of the United States shall be composed of two Senators from each State, 
elected by the people thereof for six years; and each Senator shall have one vote. 
The electors in each State shall have the qualifications requisite for the electors of 
the most numerous branch of the State legislatures. 

When vacancies happen in the representation of any State in the Senate the execu¬ 
tive authority of such States shall issue writs of election to fill such vacancies: Pro¬ 
vided, That the legislature of any State may empower the executive thereof to make 
temporary appointments until the people fill the vacancy by election as the legis¬ 
lature may direct. 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as a part of the Constitution. 

Ill connection with section 3 of article 1 of the Constitution which 
it amends and also in connection with article 5 of the Constitution, 
which provides fof and authorizes amendments to the Constitution, 
with the restriction “That no State without its consent shall be 
deprived of its equal suffrage in the Senate.” 

The primary purpose of the seventeenth amendment of the Con¬ 
stitution was to change the method of electing Senators, and to pro¬ 
vide for their election by the people direct instead of by the legisla¬ 
tures of the several States, and also to provide for the filling of va¬ 
cancies which occur where the Senator has been elected, and to pro- 


THE SENATOR FROM ALABAMA. 


61 


vide for the filling of vacancies which occur where the Senator has 
been elected, and to provide for the filling of such vacancy by the 
people in such manner as the law may provide, instead of by the 
legislature at its next session as was provided by section 3 of article 1. 

In order to prevent any State from being for any length of time 
without its proper representation in the Senate, it was provided by 
section 3 of article 1 that the executive of the State might make a 
temporary appointment until the next meeting of the legislature, 
and the seventeenth amendment has provided for a like purpose 
that the legislature may empower the executive to make an appoint¬ 
ment until an election by the people. 

It will thus be seen that in both the seventeenth amendment and 
section 3 of article 1 of the Constitution all proper safeguards were 
provided to prevent an unnecessary vacancy in the representation of 
any State in the Senate 

The seventeenth amendment further provides: 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as a part of the Constitution. 

And in order to determine what effect this provision of the amend¬ 
ment has, we must bear in mind the facts of the particular case now 
before us, which are that Senator Johnston was elected by the Legis¬ 
lature of Alabama as a Senator of the United States for the term of 
six years, beginning March 4, 1909, and expiring March 3, 1915, under 
the provisions of section 3 of article 1 of the Constitution, and that 
the term for which he was elected has not as yet expired, and will not 
expire until March 3, 1915, under the provisions of section 3 of article 
1 of the Constitution, and that the term for which he was elected has 
not as yet expired, and will not expire until March 3, 1915. Also, 
that the seventeenth amendment became effective as a part of the 
Constitution of the United States by the proclamation of the Secretary 
of State of the United States on the 31st day of May, 1913; and that 
the Legislature of Alabama has not been in session since the seven¬ 
teenth amendment to the Constitution was proposed, and that there 
has been no opportunity for legislation in this State which would 
carry into effect the provisions of this amendment, in so far as legis¬ 
lative action by the several States is rendered necessary. 

That the provisions of the third section of the amendment were 
embraced in the amendment, not for a permanent purpose, but for 
a temporary purpose; that is, to preserve the integrity of the Senate 
as a constitutional body until such a time as its membership could 
be elected in accordance with the provisions of the amendment, no 
reasonable man can doubt. Nor can it be doubted that it was known 
and recognized at the time the amendment was framed and submitted 
for ratification that this change would require time within which to 
become operative. 

The framers, therefore, advisedly provided not only that its adop¬ 
tion should not affect the election, but also that it should not affect 
the term of any Senator chosen before its ratification. 

We are therefore forced to consider and determine the meaning of 
the word “term” as used in the third section of the seventeenth 
amendment. . _ _ . . ... L „ 

In Thirty-Eighth Cyclopedia, page IS 1 , m defining the word term, 
it is said: “As applied to time, a fixed period; a determined or pre- 

7674—13-5 


62 


THE SENATOR FROM ALABAMA. 


scribed duration; the time for which anything lasts; any limited 
time.” 

That the term of office of an officer is separate and distinct from 
the person exercising the duties of the office, there can be no doubt. 
In State v. Sayre (118 Ala., 1) this distinction is recognized, both in 
the opinion of the majority of the court, written by Brickell, C. J., in 
the concurring opinion of Justice McClellan, and in the dissenting 
opinion of Justice Head, in which latter opinion it is said: 

The phrase “term of office,” in ordinary parlance, means the fixed period of time 
for which the office may be held. And we have a statutory rule for the construction 
of statutes requiring that in construing statutes “words and phrases shall be taken 
in their plain, ordinary, and usual sense,” except that technical words and phrases 
having a peculiar and appropriate meaning in law shall be understood according to 
their technical import. * * * Going to the standards of our language we find 
that a term means the time for which anything lasts; any limited time; the term of 
life. And turning to authorities they announce that the expression “term of office” 
uniformly designates a fixed and definite period of time. * * * So that whether 
we take the phrase “term of office” in its ordinary or popular sense or in its technical 
import, it means one and the same thing, a fixed and definite period of time. Of 
course every such period of time, in order to be fixed and definite, must have a point 
of beginning and a point of termination equally fixed and definite. 


To the same effect see citations under head “Term of office” in vol¬ 
ume 8, Words and Phrases, pages 6920-6921. 

The provisions of section 3 of Article I of the Constitution of the 
United States, dividing the Senate into classes, so that the term of 
one-third of the Senators should expire eveiy two years and fixing 
such uniform period for the expiration of their terms of office, is in no 
manner affected by the seventeenth amendment, nor was it ever 
intended that they should be so affected, and therefore the word 
“term” was embraced in the seventeenth amendment in addition to 
the word “election.” 

I am, therefore, of the opinion, and so advise you, that as to the 
vacancy caused by the death of Senator Johnston, the power and duty 
imposed upon you by section 3 of Article I of the Constitution of the 
United States remains unaffected by the adoption of the seventeenth 
amendment, for the reason that this amendment by its express terms 
postpones its operation in the case of a vacancy occurring as this one 
did until the expiration of the term which the incumbent was holding 
at the time of the adoption of the seventeenth amendment. 

I am further strengthened in this conclusion because any other con¬ 
clusion would deprive the State of Alabama of its right to equal suf¬ 
frage in the Senate, of which no amendment to the Constitution of the 
United States can deprive it under the provisions of Article V of the 
Constitution of the United States, above referred to. 

Yours, very truly, 

Robert C. Brickell, 

Attorney General. 


VIEWS OF HON. It. W. WALKER, CHIEF JUSTICE OF THE COURT 
OF APPEALS OF ALABAMA. 


In most instances when a State acted on the proposed seventeenth 
amendment it was aware that it might never be adopted and that if 
it should be adopted the time when this would occur must be wholly 
uncertain. The event might happen just after a State legislature 
had adjourned, not to meet again in regular session for nearly four 
years, two years, or one year, as the case might be. The amendment 


THE SENATOR FROM ALABAMA. 


63 


was framed and submitted with the knowledge that it would be acted 
on by the several States in view of such contingencies. Whatever 
reservation it expresses as to the time when it was to be operative is 
to be construed m the light of the circumstances under which it was 
submitted and voted on. When a State acted on the proposition, 
framed and submitted as it was, what was intended to be reserved or 
excepted from the operation of the amendment by the provision that 
“This amendment shall not be so construed as to affect the election 
or term of any Senator chosen before it becomes valid as a part of 
the Constitution” ? One view is that the provision operates merely 
to prevent the adoption of the amendment having the effect of 
vacating the seats or changing the period of service of the Senators 
who were in office at the time of its adoption. Another view is that 
the provision has the further effect of preserving, during the term for 
which any Senator had already been chosen, the old mode of filling 
vacancies occurring during such term. Under the former view the ac¬ 
tion of a State in voting for the amendment meant its consent that a 
vacancy in its senatorial representation occurring by death or resig¬ 
nation after the adoption oi the amendment and when its legislature 
was not in session could not be filled until after the next convening 
of its legislature—in the case of Alabama possibly a period of nearly 
four years, unless the governor then in office should happen to be of 
opinion that the fact of such vacancy justified the calling of an 
extraordinary session of the legislature when there was no other 
occasion or necessity for such a call. Under the latter view a State’s 
vote in favor of the amendment did not mean that it took a chance of 
being without any representation in the Senate for a considerable 
time. It is not to be supposed that the amendment was framed, 
submitted, and voted on in forgetfulness of the possibility and great 
probability of vacancies in the Senate occuring by death or resigna¬ 
tion in the interval between the date of its adoption and the next 
meeting of a State legislature. Nor—unless a State’s action shows 
plainly"that it had done so—is it to be supposed that it consented to 
be without representation in the Senate during such an interval, as 
long as it might reasonably be expected to be in many instances. 
As it must have been anticipated that the amendment might be 
adopted at a time when a considerable interval might be expected to 
elapse before many States, in the ordinary course of things, would 
have the opportunity to make such changes in their laws as the change 
in the Constitution called for, it must have occurred to those who 
framed the amendment and to those who acted on it that it was 
advisable to leave the old method of filling vacancies in the Senate 
otherwise than by the expiration of a Senator’s term in force long 
enough to insure to every State the means of keeping a practically 
unbroken representation in the Senate. And if language is found in 
the amendment to which such a meaning may fairly be accorded, the 
probability is great that the States intended that language to have 
that meaning. " Certainly it can not be said that it is a perversion of 
the above-quoted language to impute to it such a meaning. It is 
submitted that the circumstances under which the amendment was 
submitted and voted on justifies the conclusion that a State, by assent¬ 
ing to it, is to be understood as saying: This State votes for the 

S osed change in the Constitution, but in view of the fact that 
change may be made at a time when it may not be convenient 


64 


THE SENATOR FKOM ALABAMA. 


for this State to make changes in its laws to meet the new condition 
of things it reserves the right to fill in the manner now provided for 
any vacancy that may occur in its representation in the Senate 
during the term of any Senator chosen by it before said amendment 
shall become a part of the Constitution. 

The old method of filling a vacancy is not superseded by an 
amendment which by its express words is not to be operative as to 
the term during which the vacancy occurred. 

R. W. Walker. 

OPINION OF JUDGE J. M. CHILTON. 

In the preamble to the seventeenth amendment to the Constitu¬ 
tion of the United States, it is declared “that in lieu of the first para¬ 
graph of section 3 of article 1, and in lieu of so much of paragraph 2 
of the same section as relates to the filling of vacancies,” the following 
is proposed, etc., as an amendment, etc. 

It is evident that the seventeenth amendment, in fact, displaces 
and repeals, from the time it becomes effective, these provisions of 
the old law. The first paragraph of section 3 of article 1 provided 
that Senators should be chosen by the legislatures of the different 
States, while the seventeenth amendment provides that they shall be 
chosen at an election by the people. Paragraph 2 of section 3 of 
article 1, relating to vacancies, provided that “if vacancies happen 
by resignation or otherwise, during the recess of the legislature of 
any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancies.” 

It is provided in the seventeenth amendment “that the legislature 
of any State may empower the executive thereof to make temporary 
appointments until the people fill the vacancy by election as the leg¬ 
islature may direct.” 

The amendment also contains the following: 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

Can the chief executive of a State, the legislature of which has 
made no provision for the holding of an election for Senators or author¬ 
izing the filling of a vacancy, make a valid appointment for filling a 
temporary vacancy until the legislature acts ? 

And does the fact that under the limitations of the State constitu¬ 
tion the legislature could not meet for such purpose (except on special 
call of the governor until 1915) affect the question? 

What is the proper construction of the provision of the amendment 
that it shall not affect “the election or term of any Senator chosen 
before it becomes valid as a part of the Constitution” ? 

The answer to these questions must depend upon the further in¬ 
quiry as to when the amendment can be said to go into effect. The 
latter question may be considered in two aspects: First, as to when 
the amendment will become operative irrespective of its latter clause 
(which provides that it shall not be construed to affect the election 
of terms of Senators already chosen) and next, to what extent this 
latter provision controls the time of its taking effect. 

All constitutional provisions must be construed, if such a construc¬ 
tion is consistent with its terms, so as to minimize to the last extent the 


THE SENATOR FROM ALABAMA. 


65 


time during which a State shall remain unrepresented in the Senate of 
the United States. The law favors such a construction as will have 
the State represented without interruption. 

By section 4 of Article IV of the Constitution it is provided: 

The times, places, and manner of holding election for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations except as to the places of chosen 
Senators. 

The seventeenth amendment does not affect this section of the 
Constitution nor has Congress in that amendment or elsewhere 
attempted to enact laws for the holding of an election or for carrying 
out of the other provisions of the amendment in respect to the filli ng 
of vacancies. 

An amendment may, we take it, like any statutory enactment, go 
into effect for certain purposes and yet not go into effect for other 
purposes. 

On the adoption of the seventeenth amendment by the requisite 
number of States and proper declaration of the fact by Congress it 
becomes a part of the Constitution in so far as it provides that all 
Senators should in future be elected by the people and not by the 
legislatures of the several States. But it required action by the 
States in the enactment of legislation necessary to carry out its pro¬ 
visions before it could ever be said to have become an active, efficient 
part of the Constitution. 

If the several States had declined to enact any legislation providing 
for an election of Senators by the people and if Congress with a 
majority opposed to tills mode of selecting Senators had declined to 
avail itself of the power conferred by section 4, which authorizes it 
“at any time to make laws to alter such regulations,” could the sev¬ 
enteenth amendment be said to be an operative part of the Constitu¬ 
tion of the United States ? 

Until the States enact the necessary legislation to put it into effect 
or Congress does so in default of action by the States the amendment 
would be a dead letter. Would the failure both of the States and Con¬ 
gress to adopt the necessary legislation have the effect to abolish the 
upper branch of Congress or would the law in force at that time of 
the amendment continue in force until superseded by additional legis¬ 
lation called for by the amendment? No such construction will be 
given the amendment as that the failure of both Congress and the 
States to adopt the necessary legislation would have the effect to 
stop the operations of the Government. The general principle would 
be held to apply in such case that statutes in force remain of force 
until repealed 'or superseded by some later statute which has itself 
become effective. 

The States and Congress, when the seventeenth amendment was 
adopted, knew it could never become effective until the States had 
performed the duty imposed by the fourth paragraph of section 3 of 
article 1 of the Constitution of enacting legislation providing for an 
election or until Congress itself had done so. 

Until such legislation is enacted, either by the States or by Con¬ 
gress, the amendment is in suspense and the old law, which it was 
intended to repeal, remains of force. 

It will be noted that the seventeenth amendment is not self¬ 
executing; that it requires the meeting of the State legislature and 


66 


THE SENATOR FROM ALABAMA. 


the adoption of provisions for holding a State-wide election. It is 
not like the eleventh amendment of the Constitution, which prohibited 
suits in the Federal courts against the States. In the case of Hol¬ 
lingsworth v. The State of Virginia (3 Dali., 378, 1 L. ed 644) held 
that this enactment was self-executing. It required no legislation 
either by the States or by Congress to give it effect. It became 
effective immediately and to the extent that a case which had ripened 
into judgment in the lower courts and was pending in the Supreme 
Court of the United States on appeal or writ of error, was held to be 
controlled by it and was dismissed by the Supreme Court of the 
United States. 

The distinction between a self-executing constitutional provision 
and one which is not self-executing is obvious. When it is self¬ 
executing it needs no further legislation, and when it is not self¬ 
executing it requires such legislation, and can not become effective 
without it. 

In Brown & Co. v. Seay (86 Ala., 122) it is said: 

The provision is not legislative in its nature, nor is it a negative or prohibitory 
clause which of itself declares the law. It establishes a principle, but does not pro¬ 
vide the means requisite to carry into effect Doubtless it was the intention to 
impose a duty on the general assembly and to require the enactment of legislation 
on a particular subject of the public printing. The requirement, however, has only 
moral force, no rule for the enforcement of the duty being provided. The provision 
in terms contemplates and provides for supplemental legislation—“shall be per¬ 
formed under contract, and under such regulations as may be prescribed by law.” 
Not doing anything which it declares shall be done, it is not self-executing, but 
expends its whole-force in commanding legislative actions, being merely mandatory, 
it is inoperative until aided by legislation, and is operative only to the extent the 
supplemental legislation imparts vitality. 

Tested by these principles the seventeenth amendment has never 
gone into active operation as a part of the Constitution and will not 
until the States shall enact the necessary legislation. This being true, 
the law in force when it was formerly adopted remains still of force, 
and it is the duty of the governor to appoint under that law until it 
is changed. 

True, it is made the duty of the State to change it, but until that 
duty is performed the Senate must live, and the State of Alabama 
must have a representative in the body. % 

It thus appears that the governor has power to appoint irrespective 
of the last provision found in the amendment. 

There are only two ways in which the constitutional amendment 
can affect the right to a seat in the Senate: One is its operation upon 
the mode of election, and the other is its operation upon the term 
itself. 

Congress recognizes not only the necessity for legislation, but that 
it would require time to enact such legislation. It knew that the 
legislatures of some States met biennially and of other quadrennially. 

There is no provision in the amendment for call of special sessions, 
and in the absence of such provision it can not be assumed that the 
States will be driven to this extraordinary expense. It was assumed, 
on the contrary, that the legislation necessary to put the amendment 
into operation would be adopted at regular sessions of the legislature 
called in the usual customary way. And in order to give time to each 
of the States, it provided that the amendment should not be operative 
upon the term or election of Senators already elected. This was but 
another way, even if rather an awkward and unscientific way, of 


THE SENATOR FROM ALABAMA. 


67 

declaring that the amendment should not be operative in any State 
during the time covered by the term of the Senator from that State. 

Certainly this is a more reasonable construction than one which 
would apply to the amendment literally, so as to exempt Senators 
from its operation who had already been elected. Surely it was 
unnecessary to throw such protection around Senators whom the 
Senate, in the exercise of its constitutional power, had recognized as 
Members of its body. It was not intended to declare that Senators 
who were already thus seated should not be disturbed in their seats. 
Moreover, this would leave no field of operation for the declaration 
that it should not affect the term. The provision can be given a more 
rational construction by holding that it was intended to postpone the 
operation of the amendment in each State until the term of its then 
Senator should expire. After that the State must conform to the 
requirements of the amendment or would be regarded as in default 
to such an extent as to impose the duty of legislation upon Congress. 

And if this clause is of doubtful construction, we submit that that 
construction should be adopted which will enable the State to at once 
fill the vacancy without calling the legislature together and be thus 
represented in the body than one that would postpone its representa¬ 
tion during the delay incident to the calling of the special session and 
possibly of the holding of an election. The intention of the lawmakers 
was that the amendment should not become operative until the States 
had had time to conform to its requirements; and whether this can be 
said to be the intention or not, it is the law that it did not become oper¬ 
ative until the necessary legislation was enacted. 

Next, it was contemplated that such legislation would be enacted 
in the case of each State before the term of its sitting Member had 
expired. 

The provision that the amendment shall not affect the election or 
term .of Senators already elected is a legislative recognition of the 
principle that the amendment was not self-executing and was an effort, 
though an imperfect one, to fix the time within which the States were 
expected to perform their duty under it. Thus construed, all its pro¬ 
visions harmonize. 

MEMORANDUM BY DANIEL W. TROY, SPECIAL COUNSEL TO 
THE GOVERNOR OF ALABAMA. 

It is believed that the question thought to exist in this matter has 
no real existence whatever and must at once disappear when the 
language of the seventeenth amendment is tested by the only standard 
which can have application. In certain of the arguments advanced, 
whether for or against the appointment of Mr. Clayton by the governor 
of Alabama, the logical standard of construction seems to have been 
largely overlooked. The changes in the organic law proposed to be 
brought about by the amendment are serious and far reaching, as much 
so perhaps as any previous steps in the development of the Consti¬ 
tution. Doubtless the builders of the frame of words which consti¬ 
tutes the amendment gave its elements most careful consideration 
and selected each and every word for its specific and definite meaning. 
That meaning, however, was with equal certainty the meaning under¬ 
stood by that particular committee of the Senate. But an essential 
feature of this frame of words and of paramount consideration in 


68 


THE SENATOR FROM ALABAMA. 


arriving at its present meaning is this: The frame of words became an 
amendment to the Constitution of the United States only after its 
adoption by so many States. Obviously, up to the time when the 
States ratified the proposed amendment it was nothing more than a 
suggestion, the purport of which each State had to reach from the 
plain meaning of the words themselves and entirely without reference 
to what the Senate may have intended to write. In short, when the 
proposed amendment as drafted was voted upon by the appropriate 
agencies of the several States it was voted into the Constitution as 
meaning what it purported to say—what it purported to say to an 
open mind. It would seem logically impossible to adopt any other 
standard of construction. We have no right to construe the frame of 
words as the Senate may have construed it, nor as any particular State 
agencies may have understood it. What went into the Constitution 
was what all of the ratifying States must reasonably be presumed to 
have understood. And in the nature of things this common under¬ 
standing must be its plain meaning to a reader without preconceived 
ideas of the intent which actuated the framers or which governed any 
particular State in its ratification. Considered in the light of this 
standard the supposed question of construction disappears. The 
validity of the appointment, of course, rests entirely with the Senate 
itself (Kilburn v. Thompson, 130 U. S., 168) but it is believed that 
there is really no room for any uncertainty whatever when the several 
paragraphs which form the amendment as adopted are considered as 
they must have been construed by the ratifying States. 

The Senate of the United States shall be composed of two S?nators from each State, 
elected by the people thereof, for six years; and each Senator shall have one vote. 
The electors in each State shall have the qualifications requisite for electors of the 
most numerous branch of State legislatures. 

The first paragraph makes a radical and complete change in the 
method of electing Members of the Senate, and in language the apt¬ 
ness of which is beyond criticism. No room existed for doubt as to 
what this first paragraph purported to effect. It was to provide for a 
popularly elected Senate. 

When vacancies happen in the representation of any State in the Senate, the execu¬ 
tive authority of such State shall issue writs of election to fill such vacancies: Pro¬ 
vided, That the legislature of any State may empower the executive thereof to make 
temporary appointments until the people fill the vacancies by election as the legis¬ 
lature may direct. 

The second paragraph is equally clear and entirely germane to the 
first. With the slightest knowledge of the prior manner of selecting 
Senators or filling vacancies, it is obvious at once that as a part of the 
new system of popularly elected Senators provided in the proposed 
amendment the method of popular selection was to be extended even 
to the filling of vacancies—the evident intention being that as nearly 
as possible, under the new order, the Senate be a popularly elected 
body. No other meaning can be derived from the second paragraph. 
It merely carries forward and supplements the popular method of 
selection and is part and parcel of the new machinery, relating logically 
to the new order and to nothing else. 

Even if we can not read the minds of the many whose votes adopted 
the amendment, of one thing we can be exactly certain—that is, that 
each of these minds was directed to the manner in which the transition 
from the old to the new order was to take place. Should it be 


THE SENATOR FROM ALABAMA. 


69 


effective at once on the amendment going into the Constitution, or 
should it take effect at a future time ? Or should it take effect as to 
all senatorships at the same or at different times ? Any of these con¬ 
tingencies might have been that selected. With these possibilities, 
what is the language defining the intent as to manner and time of 
going into effect ? 

This amendment shall not be so construed as to effect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

Certainly no one will be found to argue that a Senator elected 
under the old system a week, a month, or a year prior to the time 
when the amendment became “part of the Constitution” was dis¬ 
qualified to sit in the Senate. The amendment in express words is 
not “to effect” his election. Necessarily, if validly elected he is 
elected for a term. What term? Manifestly for the same term for 
which Senators could be elected prior to the amendment. Further, 
the “term” of this Senator, the amendment expressly declares, shall 
not be affected. Construed in its plain meaning as an English sen¬ 
tence, it appears impossible, in view of the necessity of a statement 
of the manner and tune when the amendment was to go into opera¬ 
tion, to draw but one intent from the words. That clear intent is 
that until the term of office of each Senator elected under the old 
system prior to the amendment has expired by operation of law— 
that is to say, has expired under the law of his election—the new 
system is not to have application to that particular term of office. 
Any other meaning would throw the manner of transition from the 
old to the new into a chaotic jumble, and entirely destroy the uniform 
system of transition from old to new and which will result in an 
orderly substitution of popularly elective senatorships in lieu of 
those of the old order as and when they respectively terminate. 

As a consequence of the foregoing, to have called a special election 
to fill the vacancy would have been constitutionally a nullity. So 
to do would have been to act under the second paragraph of the new 
amendment at a time long prior to that at which it can become 
effective with reference to the office held by Senator Johnston. The 
law governing the governor of Alabama now is that which would 
have governed him had Senator Johnston died a month or a year 
prior to the adoption of the amendment, and which must govern him 
until the term of the late Senator expires by operation of the law 
under which he was elected. Then and only then will the seven¬ 
teenth amendment become effective as to this particular senatorship. 

August 16, 1913. 

VIEWS OF T. SCOTT SAYRE, FORMER CIRCUIT JUDGE. 

Power of Governor to Appoint an Ad Interim Senator in Case 
of a Vacancy. 

Editor The Advertiser: Under section 3 of article 1 of Consti¬ 
tution of the United States authority was conferred upon the governors 
of the several States to fill by temporary appointment any vacancy 
in the United States Senatorship, occurring during a recess of the 
legislature, which appointee would hold until his successor was 


70 


THE SENATOR FROM ALABAMA. 


elected by the next ensuing legislature. Section 3 of the seventeenth 
amendment to the Federal Constitution provides: 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as a part of the Constitution. 

Upon the meaning of the word “term” hinges the whole question. 
The term for which Senator Johnston was elected was six vears, and 
such “term” will not expire until March 4, 1915. From the date of 
Senator Johnston’s death until March 4, 1915, there remains his un¬ 
expired term, the unexpired period for which he was elected. Neither 
the death nor resignation of a Senator can affect the senatorial 
term of office fixed by the Federal Constitution. Now if the word 
“term” refers to the period, and not to the incumbency, it is evident 
that the provision of section 3 of the seventeenth amendment ex¬ 
pressly exempts from the operation of the amendment the period or 
term for which Senator Johnston was elected, and that the amendment 
will not go into effect until after such “term” or period shall have 
expired. “Term of office” means the period or limit of time during 
which the incumbent is permitted to hold. (People v. La Fevre, 21 
Colo., 218.) 

The words “term of office,” as used in the Constitution with refer¬ 
ence to the duration of office of a county judge, refers to the tenure 
or duration of the office, and not to the incumbent. (Jameson 
Hudson, 82 Va., 279, 281.) 

The word “term,” when used in reference to the tenure of office,, 
means ordinarily a fixed and definite time. (Crovatt v. Mason, 101 
Ga., 246; States. Breidenthal, 55 Kan., 308; State v. Tallman, 24 Wash., 
426; State v. Twichell, 9 Wash., 530; People v. Brundage, 78 N. Y., 
403; State v. Stonestreet, 99 No. 361.) 

The word “term,” when used with reference to the tenure of office, 
ordinarily refers to a fixed and definite time. (Field v. Malster, 88 
Md., 691; People v. Tierney, 52 N. Y. Supp., 871; Ida County Savings 
Bank v. Seldensticker, 92 N. W. Rep., 862; Somers v. State, 5 S. D., 
321.) 

The expression “term of office,” as applied to a charter, means the 
time for which he was elected to serve, whether he serve the time or 
not. (Ellis v. Lennon, 86 Mich. 473.) 

The foregoing citations are not the result of original research but 
are copied from that notable work “Words and Phrases” under the 
title “Term of office.” “Unexpired term” has been defined as the 
time which the incumbent would have continued in the office if a va¬ 
cancy had not occurred. (People v. Osborne, 7 Colo., 605.) 

It seems clear from the above-cited authorities that the provision 
embodied in section 3 of the seventeenth amendment to the Federal 
Constitution that “This amendment shall not be so construed as to 
affect the election or term of any Senator chosen before it becomes 
valid as a part of the Constitution,” refers to the fixed and definite 
period of six years and not to the actual incumbency of the office 
by any particular person. It would seem that the law in force at the 
time of Senator Jonnston’s election is now and will continue to be in 
effect until March 4, 1915. 

Very truly, T. Scott Sayre, 

Former Circuit Judge . 


THE SENATOR EROM ALABAMA. 


71 


OPINION OF HON. JOHN C. FLOYD. 

In construing the seventeenth amendment to the Constitution, it 
should be so construed that its provisions will be made to harmonize 
with other provisions of the Constitution bearing upon the same sub¬ 
ject which are not expressly referred to or mentioned in its provisions. 
Article V of the Constitution is not expressly referred to in the seven¬ 
teenth amendment. This article relates to the powers of Congress 
or of legislatures of States to propose amendments under its terms 
and in a proviso places two express limitations upon that power. 
These limitations are expressed in the proviso and may be classified 
as follows: (1) That no amendment which may be made prior to the 
year 1808 shall in any manner affect the first and fourth clauses in 
the ninth section of the first article; (2) that no State, without its 
consent, shall be deprived of equal suffrage in the Senate. 

The first part of this proviso lapsed after the expiration of the 
period or time referred to, but the second part is not restricted by 
any limitation of time, and upon the adoption of the Constitution 
became and is a permanent provision of the Constitution, and while 
undoubtedly subject to amendment as any other provision of that 
instrument, no subsequent amendment designed and incorporated 
for any entirely different purpose ought to be so construed as to repeal 
by implication that wholesome provision embodied in Article Y which 
provides that no State, without its consent, shall be deprived of equal 
suffrage in the Senate. 

The primary object and purpose of the seventeenth amendment was 
to provide for the election of Senators by a direct vote of the people 
in lieu of the original provision which provided for their election by 
the legislatures of the several States. The filling of vacancies is 
incidentally involved in the changed provision, but was not a matter 
of primary consideration in the adoption of tins amendment. 

In the amendment adopted, express reference is made to sections 
3 and 4, Article I, of the Constitution, as being affected by its pro¬ 
visions, but no reference is made to Article Y, and it is not, therefore, 
reasonable to conclude that the Congress in submitting this amend¬ 
ment to the States and that the States in ratifying such amendment 
had any intention to repeal the provision in section 5 above referred 
to, and thereby put it in the power of the Senate to deny equal 
suffrage by refusing to admit a Senator appointed by the governor 
of the State to fill a vacancy caused by the death or resignation of 
a Senator. If such appointment is prohibited by the express terms 
of the Constitution, then it must be conceded that it can not be 
made. The proviso in the second paragraph of the amendment is 
permissive merely. It provides that the legislatures may authorize 
the executive to fill such vacancy temporarily by appointment. 
In Article I, section 3, this provision is also permissive. It says the 
governor may fill such vacancy. But suppose no such provision was 
found either in the Constitution or in the amendment, is there any¬ 
thing elsewhere in the Federal Constitution that forbids the appoint¬ 
ment of a Senator by the executive authority of a State to serve 
until a legal election could be held under the Constitution to elect 
a Senator to fill the unexpired term? If there is doubt, the pre¬ 
sumptions are in favor of the State’s authority. (See Tucker on 
the Constitution, vol. 1, sec. 181.) 


72 


THE SENATOR FROM ALABAMA. 


The proper rule of construction is that statutes must be construed 
prospectively. The same rule applies in construing constitutional 
provisions. (Lewis’s Southerland on Statutory Construction, vol. 2, 
pp. 1158-1161.) 

In construing a constitutional amendment where there is a con¬ 
flict or an apparent conflict between its terms and other provisions 
of the Constitution not expressly modified by it, the true rule of 
construction requires that it should be so construed as to harmonize 
with other provisions of the fundamental law. Applying these rules, 
let us analyze the several provisions of amendment No. 17 and 
ascertain if this can be done by any fair and reasonable construction 
of the language used. 

The second paragraph of the seventeenth amendment relates to 
the filling of vacancies under the Constitution as amended, and reads 
as follows: 

When vacancies happen in the representation of any State in the Senate, the execu¬ 
tive authority of such State shall issue writs of election to fill such vacancies: Provided , 
That the legislature of any State may empower the executive thereof to make tempo¬ 
rary appointment until the people fill the vacancies by election as the legislature 
may direct. 

This paragraph expressly provides for the filling of vacancies by 
election, meaning election by the people. The proviso reads: 
“ Provided , That the legislature of any State may empower the execu¬ 
tive thereof to make temporary appointment until the people fill 
the vacancies by election as the legislatures may direct.” If the 
amendment stopped with this paragraph, there might be some ques¬ 
tion as to its meaning and some ground for the contention that the 
executive of the State is not empowered to act in filling the vacancy 
by temporary appointment without legislative authority. But even 
then, such contention would not be well founded for the Constitu¬ 
tion does not forbid such temporary appointment. That a tempo¬ 
rary appointment from some source is necessary in order to keep up 
equal representation in the Senate from each State between the 
occurrence of the vacancy and the date of the election is manifest. 
The State is sovereign. It has not delegated to the Federal Gov¬ 
ernment the power to appoint or elect a Senator. The choosing of 
Senators in the manner provided by the Constitution, by the people 
of the State, is one of the rights that each State reserved to itself in 
adopting the Federal Constitution. Formerly Senators were elected 
by the legislatures of the several States, and vacancies that occurred 
when the legislatures of the States in which they occurred were not 
in session were temporarily filled by appointment by the governor. 
Hereafter elections of Senators whether for full terms or to fill vacan¬ 
cies must be by election by the people, and temporary appointments 
to cover the interim between death, resignation, or removal of a 
Senator and the time of the election must be made by the executive 
of the State. Must he have authority from the Federal Constitu¬ 
tion to do it ? Not necessarily so. If it is not forbidden in the Federal 
Constitution to make such temporary appointment, then he may law¬ 
fully do it by virtue of his supreme executive authority as the head 
of a sovereign State which under the clearest mandates of the Con¬ 
stitution is entitled at all times to equal representation with other 
States in the Senate of the United States. The question is not whether 
the executive of a State is authorized by the Federal Constitution 


THE SENATOR FROM ALABAMA. 


73 : 


or by the legislature of his State to make such temporary appoint¬ 
ment, but whether he is forbidden so to do. If not so forbidden, 
as the chief executive of the State he has an unquestioned right to do 
so in order to preserve the rights of his State and the rights of the 
people of his State in the Senate of the United States. 

But we are not driven in this contention to rest this case on the 
foregoing arguments, however sound and conclusive they may 
appear to be. 

Paragraph three of the seventeenth amendment reads as follows: 

This amendment shall not be so construed as to affect the election or term of anjr 
Senator chosen before it becomes valid as part of the Constitution. 

This saving clause of the amendment was inserted to avoid com¬ 
plications and contingencies that might arise in making a vital and 
sweeping change in the manner of choosing Senators. If it is admitted 
that such was its purpose, then it is reasonable to assume that it was 
meant to cover all complications and contingencies that might so 
arise. With this assumption as a basis, let us consider the meaning 
and purpose of this particular provision. The proper interpretation 
of this paragraph hinges upon the meaning of the word “term” as 
used therein. The word “term” as used in reference to public 
officers has a fixed and definite legal meaning. By an overwhelming 
weight of authorities where the question has arisen in judicial pro¬ 
ceedings it has been held that the word “term” refers to the tenure 
or duration of the office and not to the incumbent. The Constitution 
fixes the term of a Senator at six years. Previous to the adoption of 
this amendment, upon the death or resignation of a Senator who had 
been elected for six years, the governor had authority to appoint a 
Senator to serve until the legislature chose a successor. If both the 
governor and legislature exercised this constitutional authority, it 
was possible, and in fact often happened, that two or more incumbents 
served for different and varying intervals of time during a senatorial 
term, the term being a fixed and definite period of time, fixed by the 
Constitution at six years. The seventeenth amendment in no way 
changes the Constitution in this respect. The term is still a term of 
six years. However vacancies may be filled under this amendment, 
the incumbent or incumbents chosen to fill the vacancies are simply 
filling the unexpired term or unexpired portions of the term of the 
person chosen originally for the full term of six years. 

Applying these principles to the Alabama case, what do we find ? 
Senator Johnston, previous to the adoption of the seventeenth amend¬ 
ment, was chosen as a Senator by the legislature of Alabama for a full 
term of six years. If this amendment is not to affect the term of Sena¬ 
tor Johnston or the term for which he was elected, then it is clear that 
paragraph 2, section 3, of article 1 of the Constitution is still in full 
force and effect in so far as this particular vacancy and other vacancies 
under like conditions are concerned and that the governor of Alabama 
in appointing Henry D. Clayton to fill the vacancy temporarily caused 
by me death of Senator Johnston had full constitutional authority to 
do so. 

That authority rests upon those provisions of the Constitution re¬ 
lating to the filling of vacancies which were in force at the time 
Senator Johnston was elected for a full term of six years. The seven¬ 
teenth amendment does not affect that authority, because it expressly 
declared in said amendment that “this amendment shall not be so 


74 


THE SENATOR FROM ALABAMA. 


construed as to affect the election or term of any Senator chosen 
before it becomes valid as a part of the Constitution.” 

The words “term of office” or the word “term,” when used in 
reference to an office, refers to the tenure and continuation of the 
office and not to the incumbent, and the word “term” means ordi¬ 
narily a fixed definite time. (Words and Phrases, vol. 8, p. 6920; 
21 Colo., 218; Jameson v. Hudson, 82 Va., 279-281; Crovatt v. Mason, 
28 S. E., 891-894; 101 Georgia, 246; 55 Kansas, 308.) 

OPINION OF HON. LOUIS FITZHENRY. 

Joseph Forney Johnston was a member of the United State Senate 
from Alabama, having been elected by the legislature for the full term 
of six years ending March 3, 1915. On the morning of August 8, 1913, 
he died at his home in Washington, D. C., while attending a special 
session of Congress. On Monday, the 11th day of August, 1913, the 
governor of the State of Alabama appointed the Hon. Henry D. 
Clayton of Alabama to fill the unexpired portion of the term of 
Senator Joseph Forney Johnston, deceased. 

At the time of the election of Senator Johnston for the full term of 
six years ending March 3, 1915, section 3 of Article I of the Constitu¬ 
tion as originally drafted was in force. On the 31st day of May, 1913, 
the Secretary of State issued his proclamation announcing the 
adoption of an amendment to the Constitution in lieu of the first 
paragraph of section 3, Article I of the Constitution. Mr. Clayton 
now presents his credentials to the Senate, asks to be sworn in, and 
objection is made. The chief reason assigned for this objection is 
that the governor of Alabama on August 11, 1913, was without 
power to make the appointment of Mr. Clayton to temporarily repre¬ 
sent the State of Alabama in the United States Senate until the 
vacancy could be otherwise filled. 

The Federal Government is one of delegated powers. It only has 
such powers as are expressly given to it by the Constitution or those 
which are necessarily implied from the language used in granting the 
express power. The State of Alabama is a sovereign State. It is in 
possession of all of its prerogatives except those which it has dele¬ 
gated to the Federal Government by virtue of the Constitution of 
the United States. Being a sovereign State its people have met in 
constitutional convention and designed the machinery of the State 
government, created three departments—those of the executive, 
legislative, and judiciary—and all power of the sovereign people of 
the State of Alabama not expressly withheld to the people in that 
constitution are granted to the executive, legislative, and judicial 
officers of that State. This grant, of course, is subject to revocation 
at any time in a lawful manner by the people of the State of Alabama. 
Section 113 of Article V of the constitution of Alabama provides: 

The supreme executive power of this State shall be vested in a chief magistrate, 
who shall be styled the governor of the State of Alabama. 

When the people created this office the very mention of it carried 
with it not alone the powers expressly granted, but also those not 
expressly prohibited. It granted the governor of the State of Ala¬ 
bama in addition all powers which are incidental to “the supremo 
executive power of the State.” At the time the constitution was 
written (1901) the expressions “supreme executive power,” “chief 


THE SENATOR FROM ALABAMA. 


75 


magistrate,” as well as “the governor,” had a well-known, defined, 
specific meaning among all English-speaking peoples and states, and 
the mention of those expressions in the constitution of the State of 
Alabama by the people of Alabama in convention assembled carried 
with it all those common-law powers. All executive power not 
expressly prohibited was therefore granted to the governor by the 
people of the State of Alabama. 

On the other hand, the people of Alabama had surrendered to the 
Federal Government only such powers as were expressly granted or 
necessarily implied in the Constitution of the United States. The 
State of Alabama had surrendered a number of rights to the Federal 
Government and one of those in turn granted to the State of Alabama 
was the right to have, among other things, two Senators in the United 
States Senate, whose terms should be for the full period of six years. 

So I feel that the committee should not take the position of asking 
Mr. Clayton or his counsel to show some affirmative act of the legisla¬ 
ture granting power to the governor to make this appointment, but 
that it should consider the question as to whether or not the governor 
has been prohibited either by the Federal Constitution or by the con¬ 
stitution of the State of Alabama from making such an appointment. 

In the view that I take of the questions of law surrounding this 
situation the Federal Constitution not only does not prohibit the 
governor of the State from exercising the power which he did exercise 
when he appointed Mr. Clayton, but, on the contrary, the power is 
expressly enumerated. Section 3 of article 1 of the Constitution as 
originally drafted recognized the right of the executives of States in 
eases of vacancies to make just such appointments as that of Mr. 
Clayton, by the use of these words: 

If vacancies happen by resignation or otherwise during the recess of the legislatuxe 
in any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which may then fill such vacancies. 

The one change sought to be made in the selection of Members of 
the United States Senate was to provide that they should be elected 
by the people of the several States instead of by the legislature, but 
this committee should not overlook the last paragraph of the amend¬ 
ment to the Constitution of May 31, 1913. It is provided— 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

In the construction of a constitution it is the duty of the court, or 
of the Senate in a case of this character, to consider that each and every 
clause in a written constitution has been inserted for some useful pur¬ 
pose, and therefore the instrument must be considered as a whole in 
order that its intent and general purpose may be ascertained. It is 
also your duty in construing the Federal Constitution to so construe 
each provision that it will harmonize with all others without distort¬ 
ing the meaning of any such provision. It is a rule of construction 
applicable to all constitutions that they are to be construed so as to 
promote the objects for which they were framed and adopted. (Juil- 
liard v. Greeman, 110 U. S., 421; Prigg v. Pennsylvania, 16 Pet., 539; 
Gibbons v. Ogden, 9 Wheat., 1; U. S. Bank v. Deveaus, 5 Kranch, 61; 
Dorman v. State, 34 Ala., 216.) 

The object of that part of the Constitution which we are to consider 
is to secure to each State its proper representation in the United 
States Senate. To hold at this time that the governor of Alabama was 


76 


THE SENATOR EROM ALABAMA. 


without power to make the appointment, that the vacancy caused by 
the death of Senator Johnston could not be filled except by the great 
delay incident to a primary election and an election to fill the vacancy,, 
would be to so construe the recent amendment as to deny the State 
of Alabama, without its consent, an equal suffrage in the Senate, and 
that at a time when legislation of momentous importance, not only 
to the United States, but especially to the State of Alabama, is under 
consideration. 

The last clause of Article V of the Federal Constitution providing 
for and allowing amendments to it, expressly provides that no State 
without its consent shall be deprived of its equal suffrage in the 
Senate. It is the duty of this committee to construe the recent 
amendment to Article I of the Constitution and Article V, so that each 
will be effective and the various provisions harmonious. It was 
undoubtedly the intention of those who framed the joint resolution 
that this amendment should not affect in any way either the election 
or the term of any Senator chosen before the amendment became 
effective. In other words, it expressly provided by its own terms 
that it would not be effective as to the terrri of any Senator which 
commenced prior to the 31st day of May, 1913, and could not become 
effective as to Senator Johnston’s seat until the people of Alabama 
sought to elect a person whose term was to succeed the term of 
Senator Johnston, which expires March 3, 1915. To hold otherwise 
would be to hold that the recent amendment authorizing the Senate 
to deny one of the States equal suffrage without its consent. To hold 
otherwise than that the recent amendment is not effective as to the 
unexpired portion of Senator Johnston’s term is to do violence to 
every canon of construction of constitutions and statutes. 

CONSTRUCTION OF CONSTITUTION AND AMENDMENTS. 

Cases cited .—Norton v. Bradham (21 S. C., 375); State v. Thomas 
(10 Kans., 191); Dullam v. Willson (19 N. W., 112); Arey v. Lindsey 
(48 S. E., 889). 

Term of office .—Bosworth v. Ellison (147 S. W., 400. Late Ken¬ 
tucky case). 

SENATE DOCUMENT NO. 170, SIXTY-THIRD CONGRESS, FIRST 

SESSION. 

Opinion of Mr. Hannis Taylor. 

Had the governor of Alabama, after the adoption of the seventeenth 
amendment, the constitutional power to appoint the Hon. Henry D. 
Clayton as the successor of Senator Joseph F. Johnston “until the 
next meeting of the legislature,” under paragraph 2 of section 3 of 
Article I of the original Constitution, relating to vacancies in the 
Senate, which provides that “if vacancies happen by resignation or 
otherwise, during the recess of the legislature of "any State, the 
executive thereof niay make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies” ? 

Mr. Clayton has requested me to prepare an opinion in answer to 
that question. Senator Johnston was elected by the Legislature of 
Alabama as Senator of the United States for the term of six years. 



THE SENATOR FROM ALABAMA. 


77 


beginning March 4, 1909, and ending March 4, 1915. He died at 
Washington on August 8, 1913, during the recess of the quadrennial 
Legislature of Alabama, whose next regular session will not begin until 
January, 1915. As the election of Senator Johnston had taken place, 
and as his term of six years had begun to run long before the adoption 
of the seventeenth amendment, the governor of Alabama was advised 
that the operation of such amendment on such term was entirely 
suspended by its final paragraph, which provides that “This amend¬ 
ment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution.” 
In other words, Gov. O’Neal was advised that that final paragraph 
was expressly intended to keep in force paragraph 2 of section 3 of 
Article I of the original Constitution relating to a vacancy when such 
vacancy occurred in the “term of any Senator chosen before it (the 
seventeenth amendment) becomes a valid part of the Constitution.” 
If the seventeenth amendment was not intended to suspend the 
ancient method of filling vacancies, “during the recess of the legisla¬ 
ture of any State,” as to the “term of any Senator chosen before it 
becomes a valid part of the Constitution,” then there can be no 
difficulty as to the validity of Mr. Clayton’s appointment. That 
conclusion becomes inevitable when the constitutional clauses 
involved are considered in the light of their history. 

When on July 5 a report was made to the Federal Convention of 
1787 that in the second branch or Senate “each State shall have an 
equal vote,” a storm arose that almost wrecked the convention itself. 
The greater States, led by Madison and Gouveneur Morris, demanded 
that senatorial representation should be based on population. The 
smaller States, led by Ellsworth and Gerry, threatened to secede and 
set up for themselves if each was not accorded an equal vote in the 
upper Chamber. In the midst of the uproar Morris said: 

State attachment and State importance have been the bane of this country. We 
can not annihilate, but we may, perhaps, take out the teeth of the serpents. 

Gerry said: 

If we do not come to some agreement among ourselves, some foreign sword will 
probably do the work for us. 

Madison said he could not suspect that Delaware would brave the 
consequences of seeking her fortunes apart from the other States, 
rather than submit to such a government. Much less could he sus¬ 
pect that she would pursue the rash policy of courting foreign sup¬ 
port, which the warmth of one of her representatives had suggested. 

So violent were the passions thus aroused that Martin reported 
that the convention was “on the verge of dissolution, scarcely held 
together by the strength of a hair.” In a supreme effort to restore 
calm, the peacemaker, Franklin, forgetting the mocking skepticism 
of his youth, proposed that the convention should be opened every 
morning by prayer. On July 11 the clouds began to lighten. In the 
words of Bancroft, “Virginia, with a united delegation, had her hand 
on the helm, while North Carolina kept watch at her side.” But not 
until the 16th was the battle won by self-abnegation of North Caro¬ 
lina, who on that day broke away from her great associates and saved 
the convention by giving a majority of one to the smaller States. 
On the 23d the number of Senators from each State was fixed at two, 
and each, as proposed by Gerry and Sherman, was personally to have 

7674—13-6 


78 


THE SENATOR FROM ALABAMA. 


one vote. The result of this all-important victory thus won by the 
smaller States by a single vote they were careful to guard by limiting 
the power of amending the Constitution by the following proviso 
(Art. V): 

Provided, That no amendment which may be made prior to the year 1808 shall in 
any manner affect the first and fourth clauses of the ninth section of the first article, 
and that no State, without its consent, shall be deprived of its equal suffrage in the 
Senate. 

In order to preserve that equal suffrage at every moment, it was 
provided by section 3 of Article I that— 

The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof for six years, and each Senator shall have one vote, 
* * * and if vacancies happen by resignation or otherwise during the recess of the 
legislature of any State the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such vacancies. 

That provision of the Constitution had been the working rule for 
120 years prior to the beginning of the term of Senator Johnston, on 
March 4, 1909, and it is impossible that it could have been disturbed 
in any way prior to May 31, 1913, when the seventeenth amendment 
became effective as a part of the Constitution of the United States. 

Is it unnatural or unreasonable to suppose that the framers of the 
seventeenth amendment intended that this ancient rule which gov¬ 
erned the six-year term of Senator Johnston when it began on March 
4, 1909, and which certainly continued to govern it until May 31, 
1913, should continue to govern it until its close on March 3, 1915? 
English and American law has always refused to give a retrospective 
effect either to statutes or to constitutions, unless compelled to do so 
by positive words that make impossible any other construction. 

Judge Cooley has thus stated the rule: 

Operation to be prospective. We shall venture also to express the opinion that a 
constitution should operate prospectively only (italics the author’s), unless the words 
employed show a clear intention that it should have a retrospective effect. This is 
the rule in regard to statutes, and it is one of such obviovs convenience and justice 
that it must always be adhered to in the construction of statutes, unless in case where 
there is something on the face of the amendment putting it beyond doubt that the 
legislature meant it to operate retrospectively. (Moon v. Durden, 2 Exch., 22. See 
Dash v. Kan Kleek, 7 Johns, 477; Brown v. Wilcox, 22 Miss., 127; Prive v. Mott, 
52 Penn St., 315; Broom’s Maxims, 28; post, p. 370, and note. Constitutional Lim¬ 
itations, 5th ed., p. 76.) 

The American authorities are quite uniform on the retroactive effect of statutes. 
The general rule is that no statute, however positive in its terms, is to be construed 
as designed to interfere with existing contracts, rights of action, or suits, and especially 
vested rights, unless the intention that it shall so operate is expressly declared, and 
courts will apply new statutes only to future cases, unless there is something in the 
very nature of the case or in the language of the new provision which shows that they 
Were intended to have a retroactive operation. (Potter’s Dwarris on Statutes and Con¬ 
stitutions, p. 162, note 9.) 

In the text the same authority (p. 164) says: 

Laws can not attach themselves to conduct antecedent to the creation of the rules 
themselves. This would be a thing impossible; for at the time the particular trans¬ 
action took place, there being no rule, a law subsequently passed was not and from 
the nature of the case could not have been an existing rule governing such a trans¬ 
action; it would not then be, in that case, a rule of civil conduct. The conduct of 
the past must stand acquitted or condemned; be lawful or unlawful when judged by 
rules which had existence at the time the transaction took place. It world be mon¬ 
strous were it otherwise. The future alone can be called upon to observe the dictates of 
new rules. 

Judge Cooley therefore put the matter mildly when he said, in 
italics, “ That a constitution should operate prospectively only , unless the 


THE SENATOR FROM ALABAMA. 


79 


words employed show a clear intention that it should have a retro¬ 
spective effect.” So far from containing such words, the seventeenth 
amendment expressly declares, in its final paragraph, that it shall not 
be construed retrospectively. The declaration is this: “This amend¬ 
ment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 
Thus the fact is put beyond all question that the new method which 
vests in the legislature of any State the authority to “empower the 
executive thereof to make temporary appointment until the people 
fill the vacancies by election as the legislature may direct” was not 
intended to control or affect the term of a Senator elected or appointed 
before the adoption of the amendment. The calling together of the 
legislature to empower the governor to appoint, or the ordering of an 
election of a Senator to fill an unexpired term, can only relate to a 
case in which the Senator has been elected after the adoption of the 
amendment in question. If Senator Johnston had been elected or 
appointed after the adoption of the amendment and died before the 
expiration of his term there could then have been no question that 
the temporary vacancy could in that event have been filled by the 
governor only when “empowered” so to do by the legislature. On 

e other hand, as Senator Johnston was elected long before the adop¬ 
tion of the amendment, and as his “term” had begun to run long 
before that time, a temporary appointment to fill the vacancy could 
only be made, as it was made, under paragraph 2 of section 3 of 
Article I, which was continued in force for that very purpose. 

The final paragraph of the seventeenth amendment in declaring that 
it “shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as a part of the Constitution” 
uses a formula older than the Constitution itself. Everybody knows 
that the Constitution was evolved in the Federal Convention of 1787 
out of certain “plans” which were carefully prepared months before 
the famous assembly met. In the “Virginia plan,” drafted by Mad¬ 
ison and presented by Gov. Randolph, it is declared that “members 
of the second branch (Senators) were to hold their offices for a term 
sufficient to insure their independency ” and were to be ineligible to 
offices “except those peculiarly belonging to the functions of the sec¬ 
ond branch during the term of service.” 

On June 12 the Committee of the Whole debated the “question on 
the clause relating to term of service and compensation of the first 
branch.” 

Mr. Sherman said in that debate he preferred “five years, which 
would be between the terms of the first branch and the executive.” 

According to the Madison Papers (Vol. II, p. 852)— 

Mr. Randolph was for the term of seven years * * *. Mr. Madison considered 
seven years as a term by no means too long. * * * He was not afraid of giving 
too much stability by the term of seven years. 

Then follows (ibid., p.853) the vote “On the question for ‘seven 
years/ as the term for the second branch.” 

In the report made by Mr. Gorman on June 13 (ibid., p. 858) it 
was— 

Resolved , That the Members of the first branch of the National Legislature ought 
be elected by the people of the several States for the term of three years. 

On June 25 (ibid., p. 960) the entry is— 

The clause, that the second branch hold their offices for a term of “seven years” 
being considered, Mr. Gorman suggests a term of “four years,” one-fourth to be elected 
every year. 


80 


THE SENATOR FROM ALABAMA. 


In the resolutions referred to the Committee of Detail (ibid., pp. 
1220-1221) on July 26 this occurs: 

3. Resolved , That the Members of the first branch of the Legislature ought to be 
elected by the people of the several States for the term of two years. * * * 

4. Resolved , That the Members of the second branch of the Legislature of the United 
States ought to be chosen by the individual legislatures: to be of the age of 30 years 
at least; to hold their offices for six years, one-third to go out biennially. 

Thus it appears that prior to the meeting of the Federal Convention 
Madison, as the draftsman of the Virginia plan, employed the word 
“term” in its technical sense, to define the period of service of a 
Senator, and it was so used with great frequency throughout the 
debates on that subject. It was also used in the resolutions of July 
26 to define the “term of two years,” the length of the service of a 
Member of the House of Representatives. In that way the word 
“term” has become technical in our constitutional literature, as the 
best phrase to describe the period for which a Senator or Repre¬ 
sentative in Congress is elected. In that way it was employed in the 
last paragraph of the seventeenth amendment, whose framers wisely 
provided not only that its adoption should not affect the election, but 
also that it should not affect the “term of any Senator” chosen before 
its ratification. That the term of an officer is separate and distinct 
from the person exercising the duties of the office, there can be no 
doubt. 

In State v. Sayre (118 Ala., 1) Justice Head said: 

The phrase “term of office,” in ordinary parlance, means the fixed period of time 
for which the office may be held. * * * And turning to the authorities they an¬ 
nounce that the expression “term of office” uniformly designates a fixed, a definite, 
period of time. * * * So that whether we take the phrase “term of office” in its 
ordinary or popular sense or in its technical import, it means one and the same thing, 
a fixed and definite period of time. Of course every such period of time, in order to 
be fixed and definite, must have a point of beginning and a point of termination 
equally fixed and definite. 

“Term of office” means the period or limit of time during which 
the incumbent is permitted to hold. (People v. La Fevre, 21 Colo., 
218.) The words “term of office,” as used in the constitution with 
reference to the duration of office of a county judge, refers to the 
tenure or duration of the office and not to the incumbent. (Jameson 
v. Hudson, 82 Va., 279, 281.) The word “term” when used in refer¬ 
ence to the tenure of office means ordinarily a fixed and definite time. 
(Crovatt v. Mason, 101 Ga., 246; State v. Breidenthal, 55 Kans., 308; 
State v. Tallman, 24 Wash., 246; State v. Twedale, 9 Wash., 530; 
People v. Brundage, 78 N. Y., 403; State v. Stonestreet, 99 No., 361.) 
“Unexpired term” has been defined as the time which the incumbent 
would have continued in the office if a vacancy had not occurred. 
(People v. Osborne, 7 Colo., 605.) From the foregoing authorities 
it clearly appears that the six-year term of Senator Johnston, whose 
beginning was marked by March 4, 1909, and whose ending is marked 
by March 3, 1915, is a legal entity whose duration does not depend 
upon the life of the incumbent. The precise question involved is 
this: Does the right of the governor of Alabama to make a temporary 
appointment to the vacancy caused by Senator Johnston's death still 
depend upon paragraph 2 of section 3 of Article I of the original Consti¬ 
tution, despite the ratification of the seventeenth amendment ? The 
last paragraph of that amendment answers that question emphati¬ 
cally in the affirmative by the declaration that— 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes a valid part of the Constitution. 



THE SENATOR FROM ALABAMA. 


81 


Nothing gives more cogency to the conclusion which has thus been 
reached than the fact that the seventeenth amendment, unlike the 
eleventh (Hollingsworth v. Virginia, 3 Dali., 379), is not self-executing. 
By its terms it proclaims that it can never be carried into effect until 
after State legislatures have been assembled in which schemes of legis¬ 
lation must be enacted providing for State-wide elections. Pending 
the necessarily long and tedious process in States, some of which have 
annual, some biennial, some triennial, some (like Alabama) quad¬ 
rennial legislatures, it was necessary to provide for the filling of tem¬ 
porary vacancies in the senatorial term created under the operation 
of a rule (par. 2 of sec. 3 of Art. I) which has existed for 123 years. 
No one could compute in advance the exact point of time at which 
the new rule would actually supersede the old. Under such difficult 
conditions it was a master stroKe of simplicity and good sense upon 
the part of the framers of the seventeenth amendment to make it 
declare in express terms that it should not apply in any way to the 
1 ‘ term of any Senator chosen before it becomes valid as a part of the 
Constitution.” 

Thus we have two distinct rules operating upon two distinct sub¬ 
ject matters in such a way as to make conflict impossible. All 
senatorial terms existing prior to the adoption of the new amendment 
are governed by the ancient rule; all senatorial terms created after 
the adoption of the new amendment are governed by the new rules 
it prescribes. In that way the two processes move on side by side, 
“distinct as the billows yet one as the sea.” 

And here let it be said, in conclusion, that the seventeenth amend¬ 
ment does not attempt, directly or by implication, to supersede 
Article V, which, in providing for the amendment of the Constitution 
declares “that no State, without its consent, shall be deprived of its 
equal suffrage in the Senate.” 

That is the only provision now contained in the Constitution of the 
United States which is not subject to removal by amendment. In 
commenting upon that fact Mr. Bryce (Am. Commonw., vol 1, p. 
366) has said: 

There is only one provision of the Constitution which can not be changed by this 
process. It is that which secures to each and every State equal representation in 
one branch of the legislature. “No State without its consent shall be deprived of 
its equal suffrage in the Senate.” (Art. V.) It will be observed that this provision 
does not require unanimity on the part of the States to a change diminishing or ex¬ 
tinguishing State representation in the Senate, but merely gives any particular State 
proposed to be affected an absolute veto on the proposal. 

Alabama now has but one Senator in the Senate; her legislature 
does not meet in regular session until 1915. If at great expense an 
extraordinary session of the legislature should be called to authorize 
the filling of the vacancy under the terms of the seventeenth amend¬ 
ment, such appointment would be void because the new amendment 
declares expressly that it does not apply to a “term” existing prior 
to its adoption." The only way in which Alabama at this critical 
time can be guaranteed her “equal suffrage in the Senate” will be 
by the admission of Mr. Clayton, who has been appointed as the 
Constitution provides. 

Respectfully submitted. 

Hannis Taylor. 

Washington, D. C., August 23 , 1913. 


82 


THE SENATOR FROM ALABAMA. 


OPINION OF HON. ROBERT B. EVINS. 

Is the appointment of Hon. Henry D. Clayton by the governor of 
Alabama to serve out that portion of the term for which Senator 
Joseph F. Johnston was chosen by the Legislature of Alabama,, and 
whicn his death disabled him from completing, a valid exercise of 
official power ? 

I think, most clearly, that it is. 

It is enlightening, in seeking a just conclusion, to bear in mind the 
governmental theories that found expression in the creation of the 
United States Senate. 

As originally provided in the Federal Constitution, the Senate is 
“ composed of two Senators from each State, chosen by the legislature 
thereof for six years, and each Senator shall have one vote.” 

“In this body, therefore, the States, as coequal members of the 
Union, are represented by Senators elected by their respective legis¬ 
latures, and are the constituents of this body * * * States, not 

men, are the constituents of the Senate.” (Tucker Constitutional 
Law, sec. 161 , p. 319 .) The quoted article, therefore, conferred 
upon each State, as a sovereign political entity, the right to be repre¬ 
sented by two representatives (or, as they have been with propriety 
called, ambassadors) in the Senate of the United States for six years, 
the selection or choice of these being committed, in harmony with the 
general scheme, to the legislatures of the respective States. 

The right to be thus represented is the right of the State and arises 
out of the Federal Constitution, and includes not only the existence 
of the office but its duration or term. The right of the persons chosen 
to exercise the functions of the office is a personal trust and arises 
out of the election or act of choice made by the legislature. When, 
therefore, the Legislature of Alabama came in due season to the elec¬ 
tion of Senator Johnston there was before it the right of the State 
as a coequal of the other States in the Union to be represented by 
an official of its choice, in the Senate, for a fixed period of time, viz, 
six years. By the election it named Senator Johnston as its choice 
and invested him with a personal trust for a period coextensive and 
coterminous with the term of its existing right to representation. 
The election of Senator Johnston was, therefore, a totally distinct 
thing from his term. His right to the term followed as an incident 
to his election. The term itself—the fixed period for which the State 
had the right to commission him—existed independently of the elec¬ 
tion and by virtue of the Federal Constitution. 

This, then, was the status at the time of the adoption of the seven¬ 
teenth amendment, which substituted an election by the people for 
the choice of the legislature as a method of selecting Senators. By 
providing that the Senate should be elected by popular vote, the 
amendment without its third section was possibly subject to a con¬ 
struction by which the existing membership would have been legis¬ 
lated en masse from office. To obviate the confusion of public busi¬ 
ness that would have attended such construction it was provided by 
the clear terms of the amendment that it should not be so construed 
as to affect the election of any Senator chosen before it became a 
part of the organic law. This exception preserved the status of the 
individual as a constitutionally elected officer during the period of 


THE SENATOR FROM ALABAMA. 83 

the term for which elected, or so long as he was able within that 
period to discharge its duties. 

Had the amendment excepted nothing else but the election from 
its operation, the exception would have been operative over an indefi¬ 
nite and utterly indeterminate period, viz, during that part of the 
term for which the Senator was elected as he might be personally able 
to serve. In that case while the personal right of the individual 
existing at the time of the adoption of the amendment would have 
remained unaffected, the right of the State, also existing at the time 
of the adoption of the amendment to select its representative in a 
particular way for and during a fixed period, might have been abridged 
or exercised only at the expense and delay of a special session of its 
legislature. 

The amendment, therefore, went further, and excepted not only the 
election of the individual from its operation, but that period of time 
for which the legislature had elected him, which was his term, which 
included the methods of filling vacancies. There was thus preserved 
not only the comparatively unimportant existing rights of individual 
Senators, but the existing rights of sovereign States to representatives 
in the Senate of the United States and the manner of their selection. 
The act of the legislature in electing was not only to be continued 
through the period lor which the election was had, unless short of 
that time the person elected became incompetent; but all the rights 
conferred upon the States by the Federal Constitution and existing 
at the time of the adoption of the amendment, with reference to their 
right to representation in the Senate, the term of the service, and 
the method of selecting the incumbent, weie likewise to continue for 
the period of their original creation—which was the term for which 
Senator Johnston was elected. The whole object sought to be accom¬ 
plished was to continue the Senate, both as to individuals and the 
rights of the States to equal and continuous representation, for the 
period during which it was then existing under the law. The idea 
was for the Senate as originally constituted to expire by operation 
of law, at which time the substituted method of organization was to 
find application. 

This conclusion is not only inevitable from reason, but is strongly 
supported by authority. It is a fundamental rule of statutory con¬ 
struction that that interpretation shall be adopted which gives 
meaning, force, effect, and a field of operation to every part of the 
instrument in question. 

To say that the provision that “the term” should not be affected 
was to protect theretofore chosen Senators from loss of office, is to 
deny that word a field of operation and make it merely cumulative 
of the effect that must be given to the word “election” as it occurs 
in the concluding paragraph of the amendment, and to disregard 
entirely the fact that the election was only the act of the State legis¬ 
lature while the term was the creation of the Federal Constitution 
existing independently of the Senator, as an essential right of a sov¬ 
ereign State. 

The meaning of the word “affect” is very clear. When we say 
one thing is not “affected” by another we mean that no change 
whatever occurs in the “not affected” thing. If the amendment 
was not to “affect the election,” it was to be as if it did not exist so 


84 


THE SENATOR FROM ALABAMA. 


far as the election which was to be unaffected was concerned. It 
was not to impair it, not to invalidate it, not to wipe it out, as the 
source of a Senator’s personal right to serve. If it was to remain 
unaffected it was to continue fully and without any manner of altera¬ 
tion in its original integrity. It was not only to remain as the con¬ 
stitutional method of selecting the Senator but also as the source of 
all the personal rights which it originally gave. To say that without 
the exception of “the term” from the operation of the amendment 
Senator Johnston might have been interfered with in the service of 
his full six years, would be to admit that whatever might have so 
interfered “affected” his election. The election was for six years. 
Anything which made it for less than six years would have affected 
the election. It would in such cases have been changed into some¬ 
thing different from what it originally was. 

So I submit that it is very clear that every personal right of a 
Senator which flowed from his election was amply and fully pro¬ 
tected by withdrawing the election alone from the influence of the 
amendment. 

Unless, therefore, violence is done to the universally applied rule 
of construction above adverted to, some meaning, some force, some 
effect, some field of operation must be accorded to the other thing 
expressly excepted by the language of the amendment from the 
radius of its operation. 

If “term” is there used as a mere alternative expression to election, 
the same thing is excepted twice, an unthinkable exhibition of 
ignorance or carelessness in the preparation of so short an instrument. 
What was the other thing excepted? As herein shown the election 
creates the personal right of the Senator conferred upon him by the 
State legislature. The right to so elect him for a fixed time was the 
right of the State, conferred upon it by the Constitution, and expressed 
and identified in the amendment as the “term” of the Senator so 
elected. Manifestly, then, when the “term” was excepted the 
amendment meant exactly what it said and intended to except 
something more than the personal rights of Members of the Senate, 
those having been already protected by the exception of “the elec¬ 
tion.” There was nothing left, therefore, to protect and identify by 
the use of the word “term” but the.right of the States under existing 
laws to representatives in the Senate for the constitutional period, 
selected in the manner originally provided. 

It must have been recognized that to provide the machinery for 
the change from the old order to the new in the various States re¬ 
quired time, and that some period must be fixed up to which the 
senatorial status, as existing at the time the amendment was adopted, 
should continue. How unnatural to make it dependent upon a 
thing so uncertain as the duration of individual life or capacity 
during the term, which alone would have been accomplished by the 
exception of the election. How natural, the law having fixed a 
definite time for the expiration of the term of each Senator, to adopt 
that as the period when each State shall be prepared to exercise its 
rights in a new way. How remarkable it would have been to carefully 
protect the existing rights of individual Senators by twice providing 
for a continuance of their official life through its allotted span, while 
utterly disregarding the existing constitutional rights of a State. 


THE SENATOR FROM ALABAMA. 


85 


This view is reinforced by the fact that the word “term” has been 
universally used, both in popular acceptation and as a technical 
phrase, to refer to the period of existence of an office, and not to 
denote the duration of its incumbency by a particular person. So 
interpreted the word “term” as it occurs in the amendment is given 
a field of operation in addition to the word “election,” and the 
amendment thus provides for a change in the manner of organizing the 
Senate that would be accomplished without confusion and m recog¬ 
nition of existing rights, and is convincing of the propriety and 
validity of the action of the governor of Alabama in the appointment 
of Mr. Clayton. 

R. B. Evins, 

Legal Adviser to the Governor of Alabama. 

LETTER OF MR. C. P. MTNTYRE. 

August 20, 1913. 

Hon. Emmet O'Neal, 

Governor of Alabama, Montgomery , Ala. 

Dear Sir: At the time of the election of Senator Johnston and 
when he entered upon his term of office, the Constitution of the 
United States provided that a vacancy occurring in the office of 
United States Senator should be filled by temporary appointment of 
the governor until the next meeting of the legislature. Before 
Senator Johnston's term of office expired, the Constitution of the 
United States was amended, making the office of Senator elective by 
the people and providing for vacancies as follows: 

When vacancies happen in the representation of any State in the Senate, the execu¬ 
tive authority of the State shall issue writs of election to fill such vacancies: Provided , 
That the legislature of any State may empower the executive thereof to make tem¬ 
porary appointments until the people fill the vacancies by election as the legislature 
may direct. 

There was added to this amendment a third paragraph, which 
stated that— 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 

This last paragraph refers first to the election of certain Senators 
and to the term of office for which they were elected. The election 
to an office and the term of that office are two entirely different and 
distinct things, and these two important incidents to the office of 
United States Senator, singled out by the third paragraph of the 
amendment—of Senators chosen before the adoption of the seven¬ 
teenth amendment—a matter withdrawn clearly and specifically from 
the influence of the seventeenth amendment. The election of such 
Senators is to be determined by the Constitution as it existed prior to 
the seventeenth amendment. As to this the language of the amend¬ 
ment is so clear and unambiguous that there is left no room for doubt 
or argument. 

But the amendment does not stop here. It places upon the same 
plane wdth the election of certain Senators their term of office. The 
language that includes the election also covers the term of office, 
connected as the two are by the word “or.” The election and term of 
office of certain Senators are alike withdrawn from the operation and 


86 


THE SENATOR FROM ALABAMA. 


effect of the seventeenth amendment. The enacting body treated 
these two matters, the election and term of office of certain Senators, 
in the same way, joined them together, applied the identical language 
to them, and provided specifically and clearly that the amendment 
should not apply to either one of them. 

The language of the third paragraph is open to no other construc¬ 
tion and leaves it beyond question that the election of Senators chosen 
before the adoption of the amendment and the term of office of such 
Senators are not affected by the seventeenth amendment and are 
regulated precisely as they were prior to the adoption of the seven¬ 
teenth amendment. In the absence of the seventeenth amendment, 
the governor of the State had the power and authority, under the 
Constitution of the United States, to fill by appointment a vacancy 
in the office of the United States Senate, and in view of the fact that 
the election of Senator Johnston and his term of office are expressly 
and specifically removed from the operation of the seventeenth 
amendment and are matters regulated by the Constitution of the 
United States, unaffected by the seventeenth amendment, it follows 
that Gov. O’Neal had full power and authority to appoint the suc¬ 
cessor to Senator Johnston. 

Respectfully submitted. 

C. P. McIntyre. 

Senator Walsh. I am interested to inquire, Mr. Chairman, if it is 
likely that anybody will want to be heard to present the other side ? 

Senator Bankhead. I did not suppose there was any other side 
to it. [Laughter.] I do not know whether anybody would care to 
present the other side or not. 

Senator Walsh. I simply presumed from the argument of the 
gentlemen that we have listened to that perhaps there was another 
side to the controversy. 

Senator Bankhead. You know, Mr. Chairman, that earnestness 
is the soul of oratory. 

The Chairman. I assume that the committee will be willing to 
hear anybody on any side at any time that they desire. 

Senator Bankhead. Of course, we would be glad to have the other 
side presented. 

(Thereupon, at 10.45 o’clock p. m., the committee adjourned.) 


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